UK: Claims For The Psychological Effects of Loss of Ability to Play Sport

Last Updated: 8 November 2002

By Tim Kevan, Barrister and Dr Hugh Koch, Chartered Clinical Psychologist

"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.

Introducton

Until recently, very little has been written on the subject of sports personal injuries. However, following the publication this month of the first textbook on the subject, Sports Personal Injuries by Kevan, Adamson and Cottrell3, this is unlikely to continue. This is particularly so given that it has been estimated that there are between six million and nineteen million new sporting injuries in this country each year costing some £500 million in treatment and absence from work4. With the growth of conditional fees and the possibility of compulsory insurance schemes for amateur sportsmen such as the 500,000 amateur footballers in this country, the number of sports injury cases is only likely to increase.

The psychological effects of people not being able to play their particular sports is a developing area.

The law has long recognised the importance of sport to person’s lives. As Swift J said in Cleghorn v Oldham5:

"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."

However, the difficulty is whether the law would go as far as to recognise the loss of ability to play sport as a separate injury in itself. In Nicholls v Rushton6, the Court of Appeal held that a claimant involved in a motor accident who had no physical injury but who suffered a nervous reaction falling short of an identifiable psychological illness could not recover damages.

The purpose of this article is to examine this head of damage in more detail. Specifically, we point out that this in fact constitutes a distinct psychological injury and then go on to examine how compensation for such an injury should be assessed.

Psychological Injury

An injury which prevents someone from doing 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 for 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 (sports-related, 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 claimants’ pre-existing psychological state including his or her personality type, not withstanding taking the claimant "as one finds him". Typical psychological symptoms include:

  1. Stress symptoms (fear of further injury, intrusive thoughts, nightmares, avoidance of conversations about sport and sport observation).
  2. Mood disturbance (low mood, tearfulness, irritability, loss of libido).
  3. Social anxieties (avoidance of sporting friends and sporting events).
  4. Effect on close relationships (anger management, loss of sexual function).
  5. Chronic Pain Behaviour (interaction between pain tolerance and mood variability).

In order to raise such a claim, it will be necessary for claimants to obtain a medical and preferably a psychological assessment in this regard.

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 which are dealt with below:

  1. As part of an overall award for pain, suffering and loss of amenity.
  2. For the loss of a 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. In this regard, one is reminded of the humorous reminiscence of Lord Home7:

"My wife had an uncle who could never walk down the nave of his abbey without wondering whether it would take spin."

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

Pain, Suffering And Loss 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 life is 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 (e.g., 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 Shephard8:

"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 (e.g., 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 fanciful9.

The two main cases in this area are Langford v Hebran and Nynex Cablecomms10 and Chaplin v Hicks11. 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 in this area would be for a court to make an award for a claimant’s disability on the sporting labour market (pursuant to Smith v Manchester Corp.12).

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 Donald13.

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.

The following are examples of permanent disabilities (awards at today’s prices):

  1. Singleton v Knowsley Metropolitan Borough14

    Approximately £26,300 for loss of chance of boxing career and employment in consequence of such career.

  2. Gibbens v WJ Curley & Sons15

    Approximately £41,800, of which possibly £20,000 or so for loss of amenity including loss of the chance to be a professional footballer.

  3. Girvan v Inverness Farmers Dairy (No. 1)16

    Probably approximately £15,000 to £20,000 estimated as a reasonable award for mental anguish of being unable to clay pigeon shoot (although jury awarded more).

  4. Watson v Gray17

    £25,000 general damages of which perhaps approximately £10,000 to £15,000 reflected the enhanced loss of amenity to a professional footballer of such an injury, together with the loss of congenial employment as a result of his likely premature retirement from the game.

  5. Dibble v Carmarthen Town Council18

    Settlement of £20,000 general damages and loss of earnings to a professional footballer.

  6. Cooper v William Press & Son19

    Approximately £22,000, of which perhaps approximately £10,000 to £15,000 for loss of ability to continue wrestling.

Depending upon their severity, from the examples below awards for temporary disabilities appear to range from £10,000-£15,000 for six years away from top class rowing to £1,000-£2,000 for loss of a season’s horse-riding competitions.

  1. Ostling v Hastings20

    Approximately £22,000, of which probably approximately £10,000 to £15,000 awarded for loss of six years’ rowing.

  2. Mulvaine v Joseph21

    Approximately £11,000 for golfer’s loss of opportunity of competing in five tournaments, the ensuing loss of experience and prestige, and loss of chance of winning prize money.

  3. Gudge v Milroy22

    £7,250 awarded, of which perhaps approximately £1,000 to £2000 for missing a season of horse riding competitions.

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.

a. 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 a job they enjoyed either for a less enjoyable 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 career23 down to just over £1,0002425 for loss of one year of a particular career.

b. 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 in order to succeed. This is reflected by the level of award which in the examples below range from just over £11,500 to approximately £8,500.

  1. Kirk v Laine Theatre Arts26

    Approximately £11,700 for the loss of ability to follow chosen career as a dancer.

  2. O'Brien v Martin27

    Approximately £8,500 for loss of ballet career.

c. Musician cases

Similar to the dancing cases are those relating to musicians. The following are examples of both a professional and amateur musician. Whilst the professional musician received approximately £8,000 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.

  1. Byers v Brent LBC28

    Approximately £8,500 for loss of congenial employment and pleasure derived from playing double bass.

  2. Atkinson v Whittle29

    Probably 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 (i.e., "loss of faculty") the psychological and social injuries are typically time-limited, in that individuals adapt and adjust their life style 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 small number of 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" context30. 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 twenty years ago, it is only 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 anticipated that such cases will start to become a generic group in themselves with their own particular starting points for awards.

TIM KEVAN is a Barrister at 1 Temple Gardens with expertise in personal injury, credit hire, sports, costs, consumer and internet law. He is a member of the Civil Justice Council’s sub-committee on funding. He is the author of four textbooks: Sports Personal Injury Law, E-mail, the Internet and the Law , Kevan on Credit Hire and A Guide to Credit Hire and Repair. He has also written a number of articles in publications such as The Times, the Journal of Personal Injury Law, the Solicitors' Journal and Counsel Magazine. Contact: Chambers of Geoffrey Nice QC, 1 Temple Gardens, Temple, London EC4Y 9BB.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances

1 Chambers of Geoffrey Nice QC, 1 Temple Gardens, London EC4Y 9BB.

2 Wellington Mews, Wellington Street, Cheltenham, Glos, GL50 1XY.

3 Sweet and Maxwell, 2002;

4 British Sports Council Survey, Epidemiology of Exercise, 1991; ‘Sports Law and Litigation’ by Craig Moore (CLT Professional Publishing, 2nd Edition, 2000) at 145

5 [1927] 43 TLR 465 at 466

6[1992] Times 19 June

7 The Twentieth Century Revisited, BBC TV, 1982

8 [1964] AC 326 at 365

9 See Lord Reid in Davies v Taylor [1974] AC 207 at 213

10 [2001] PIQR Q13

11 [1911] 2 KB 786 CA

12 (1974) 17 KIR 1; (1974) 118 SJ 597, CA

13 CA, 11.12.98 (unreported). Referred to in ‘Sports Law’ by Beloff, Kerr and Demetriou, First Edition, 1999, Hart Publishing, at para. 5.70

14 [1982] CLY 840

15 [1965] CLY 1141

16 [1995] SLT 735; (No. 2) [1996] SLT 631; (HL) [1998] SLT 21

17 [1999] CLY 1510; (1999) 99(4) QR 5

18 unreported, 2001

19 [1973] CLY 805

20 [1998] CLY 1677; Kemp PRI-005

21 [1968] CLY 1118; [1968] Times, November 7; [1968] Sol Jo 22 November

22 [2000] 6 CL; [2000] 4 QR 6

23 See, for example, Hale v London Underground Ltd [1994] CLY 1569; [1993] P.I.Q.R. Q30 (fireman)

24 See, for example, Surrey v Manchester Health Commission [1998] CLY 1619 (nurse)

25

26[1995] CLY 1712

27[1996] CLY 2215

28 [1998] CLY 1645; (1998) 98(3) QR 7

29 [1999] CLY 1479

30 Koch, 2001

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