Some people think football is a matter of life and death .  I can assure you that it is much more serious than that. ” (Bill Shankley, 1973)

UNTIL RECENTLY, very little has been written on the subject of sports personal injuries. Yet it has been estimated there are between six and 19m new sporting injuries in this country each year costing some £500m in treatment and absence from work (British Sports Council Survey, Epidemiology of Exercise, 1991). With the growth of conditional fees and the possibility of compulsory insurance schemes for amateur sportsmen, the number of sports injury cases is only likely to increase.

The psychological effects of injuries which prevent people from playing their chosen sport is in particular a developing area.

The law has long recognised the importance of sport to person’s lives:

“Games might be and [are] the serious business of life to many people. It would be extraordinary to say that people could not recover from injuries sustained in the business of life, whether that was football, or motor racing, or any other of those pursuits which were instinctively classed as games but which everyone knew quite well to be serious business transactions for the persons engaged therein” (SwiftJ in Cleghorn v Oldham 11927] 43 TLR 465 at 466) r.

The difficulty is whether the law recognises the loss of ability to play sport as a separate injury in itself. In Nicholls v Rush.[on (1992.) The Times, 19 June, the Court of Appeal held that a claimant involved in a motor accident, who had no physical injury but suffered a nervous reaction falling short of an identifiable psychological illness, could not recover damages.

Psychological injury

An injury which prevents someone from playing their sport and results in {pain suffering and loss of amenity, chance or enjoyment’ can result in significant. psychological symptoms and disorder. This is as much [or a passionate amateur sportsman as it is for a professional sportsman.

The most likely disorders are classified in DSM IV (APA, 1994), the Diagnostic and Statistical Manual of Mental Disorders, and include:

1. Depressive disorders
2. Anxiety disorders (sportsrelated, social, generalised/ panic)
3. Mixed pain disorders;
4. Sleep disorders;
5. Psychosexual disorders.

These symptom clusters need to be seen in the context of the claimant’s pre-existing psychological state including his or her personality type, despite taking the claimant ‘as one finds him’. “typical psychological symptoms include:

•  Stress symptoms (fear of further injury, intrusive thoughts, nightmares, avoidance of conversations about sport and sport observation) ;
• Mood disturbance (low mood, tearfulness, irritability, loss oflibido) ;
• Social anxieties (avoidance of sporting friends and sporting events) ;
• Effect on close relationships (anger management, loss of sexual functi.on) ;
• Chronic pain behaviour (interaction between pain tolerance and mood variabilicy).

To raise such a claim, claimants need to obtain a medical and preferably a psychological assessment.

Quantum in general             

So far, quantum of this type of loss has been dealt with by the courts on an ad hoc basis and there is a paucity of guidance The are four different avenues for assessing the loss.

1. As part of an overall award for pain, suffering and loss of amenity; 2)
2. For the loss ofa chance;
3. For the loss of the opportunity to enjoy sport;
4. By analogy with other situations,

The appropriate method of determining the loss will depend upon the type of loss being assessed. For example, it may involve the loss of a career or the loss of a chance to enter a professional competition with specific prize money. Alternatively, it may involve the loss of ability to pursue a hobby for which the claimant has a great. passion.

Beyond the objective differences, there will also be the actual subjective affect this has on the claimant. In this regard, issues of mitigation and possible treatment are also dealt with below.

Pain suffering and toss of amenity

Although the major element of compensation represents the injury itself (loss of ‘faculty’), the psychological and social consequences that injury has on. the claimant’s way of Jife are relevant. To reliably assess this, it is essential to examine the circumstances of the claimant’s life prior to the accident to see whether he was enjoying special activities which he is now prevented from pursuing (eg activity holidays, sexual activity lead, leisure activities). This can even include changes in mood and socialising activity often termed (unhelpfully) ‘personality change’. As Lord Pearce said in H West & Son Ltd v Shephard [1964] AC 326 at 365: “If, for instance, the plaintiff’s main interest in life was some sport or hobby from which he will be debarred, that too increases the assessment. ”

Loss of a chance

A sportsman’s chance of winning a competition would turn on many contingencies (eg timing of competition, his form, avoidance of injury). Damages for such a loss are assessed in proportion to that chance, subject to the de minimis principle that no account is to be taken of possibilities which are very small, speculative or fanciful (see Lord Reid in Davies v Taylor [1974] AC 207 at 213).

The two main cases in this area are Langford v Hebran and Nynex Cablecomms [2001] PIQR (213 and Chaplin v Hicks (19111 2 KB 786, CA. In both cases, the court assessed the chances of future success. in Langford, which involved a champion kick-boxer, the court looked at the chances of a number of different outcomes and from that assessed the damages.

Another possible approach would be [or a court to make an award for a claimant’s cli+ ability on the sporting labour market (following Smith v Manchester co)? (1974) 17 KIR l; (1974) 118 597).

Loss of opportunity to enjoy sport

Many individuals who play either professionally or as an amateur, however ambitious they are in their sport, also derive a level of social gain from this activity. Consequently when they are unable through injury to continue this activity, they suffer a social loss in terms of contact with other sportsmen and loss of regular enjoy enjoyment. This type of loss was recognised in Tsipoloudis v Donald (CA 11 December 1998 , unrep).

There are a number of cases which involve injuries to sportsmen and women. Unfortunately; most do not actually specify how much is awarded for the injury and how much for the loss of the ability to perform the sport and the resulting disappointment. See box for examples of permanent disabilities (awards at codayk prices) :

Analogous cases

Aside from the guidance already set out above, there are analogous situations which may also help to provide the court with some guidance in this area.

Loss of congenial employment

Perhaps the best analogy for cases involving the loss of ability to perform a particular sport is those involving a claim for loss of congenial employment, where someone has had to give up job they enjoyed either for a less enjoy able one or for no job at all as a result of their injuries. This often involves members of the fire service, police and. nursing professions. In general, awards range from just over £6,000 for total loss of a career (see eg Hale v LUL 119941 CLY 1569 (Fireman)) down to just over Ll ,000 for loss of one year of a particular career (see Surrey v Manchester Health Commission [1998] CLY 1619 (Nurse).

Dancer cases

Another analogous case involves people who lose their chance of being or continuing as professional dancers. This is highly vocational and takes exceptional talent, effort: and training to succeed This is reflected by the level of award which in the examples below range from approximately £8,500 to just over £11,500:

• O’Brien v Martin [19961 CLY 2215: approxima tely L8,500 for loss ofballet career;
• Kirk v Laine Theatre Arts [ [1995] CLY 1712: approximately £11,700 for the loss of ability to follow chosen career as a dancer.

Musician cases

Similar to the dancing cases are those relating to musicians. The following are examples of both a professional and amateur musician. While the professional musician received approximately which is similar to the dancer awards, the amateur received only about £2,150 £3,250 for both the loss of the ability to play his instruments and also for loss of congenial employment.

• ‘Byers v Brent LBC [19981 CLY 1645: approximately £8,500 for loss of congenial employment and pleasure derived from playing double bass;
• ‘Atkinson v Whittle [19991 CLY 1479: approximately £2,150 £3,250 for loss of congenial employment as a teacher and loss of ability to play instruments.

Mitigation of loss via behavioural intervention

A reliable assessment of the psychological and social impact of a personal injury in a sporting context would be incomplete without the appropriate prognosis. Unlike the physical injury itself (ie ‘loss of faculty’) the psychological and social injuries are typically time„licensed, in that individuals adapt and adjust their lifestyle to accommodate a physical injury, irrespective of the outcome of the physical injury itself.

Typically, however, this adaptation is accelerated and reinforced by simple behavioural interventions to which insurers will no doubt point when faced with a claim. This does not necessarily equate to ‘therapy, although in a few cases it will, Behavioural intervention by a sports coach/trainer or psychologist can result in simple psychological and/or social interventions being adopted which help the claimant move on from feelings of helplessness and hopelessness. These are well documented in a sporting context and in the general everyday life context. It is essential and healthy to encourage claimants who have had a sporting injury to mitigate their loss by seeking out simple behavioural strategies to accelerate adjustment, either to a decreasing physical injury or to chronic physical disability.

Conclusion

Just as claims for travel anxiety were not recognised by the courts 20 years ago, it is a matter of time before the psychological aspects of sporting injuries form a common place in personal injury claims involving both amateur and professional sportsmen.

Claimants must remember to gather medical evidence and insurers will no doubt examine issues of mitigation. It is hoped that the above provide some guidance in assessing the quantum of each case. Over time it is antici-pated that such cases will start to become a generic group in themselves with their own particular starting points for awards.

References

Singleton v Knows/ey MBC [1 982] CLY 840: approximately f261300 for loss of chance of boxing career and employment in consequence of such career.

Gibbens v W Curley & sons [1 965] CLY 1 141 : approximately f41 $800, of which possibly f20t000 or so for loss of amenity including toss of the chance to be a professionai footballer.

Girvan v Inverness Farmers Dairy (No 1) [1995] SLT 735: probably approximateiy fl 5,000 to f20,000 estimated as a reasonable award for mental ånguish of being unäb(e to day pigeon shoot (although jury awarded more).

Watson v Gray [1 999] CLY •1 510:

€25,000 general damages of which perhaps          to fl 5,000 reflected the. enhanced loss of amenity to a profesSionalfootbalIer of suchi an {injury, together with the loss of congenial emplor ment as atresult of his likely premature retirement from the game.

Dibble v Carmarthen Town Council (2001 *’unret)): settlement of E20,ö00 genetal’,damages .pnd IQS’ earningsto a pro? fessional;footballet.

Cooper v William Pres’ & Son L1973]^f CLY 805: approximately, f22,000, of which* per, baps, approximately fl 0,000 to If1 g;000 foi loss of ability to. continue wrestling.

Depending upon their severity, from the examples below awards for -temporary diSabilities. appear ‘to range from €10>000f15,000 for, sixyeats-away from top class rowing to El for löss«jf a season ‘9 horse-riding competitions.

Ostling v Hastingsll 9981 1677: approxi ^L mately E22,000, of which: probably approk imately f 10,000 to El 5,000 awarded for loss of. six years ^l rowing.

Mulvaine v Joseph ‘[1968] CLY IA 8: apptoximately f 1 1 ‘000 •for golfer’s loss of opportunity of competing in4ive tournæ ments, the. ensuing• loss of experience and prestige; and loss of chance of winning prize money.

Gudge v Milroy12000]6 CL: f7P50 awarded, of which perhaps approximately fl ,000 to f2000 for missing a season of horse riding competitions.