The referee’s decision not to award a foul for a challenge which later resulted in a negligence claim should have been taken into account, the High Court has ruled.

In Fulham Football Club v Jones Mr Justice Lane ruled that a recorder had erred in law in law by affording no weight to the fact the referee allowed play to continue following a tackle by Fulham under-18 player Jayden Harris on Swansea City’s Jordan Jones. Jones suffered an ankle injury which ended his professional career and he brought proceedings against Harris’ club Fulham for vicarious liability.

At trial, Jones told the recorder that Harris launched himself with both legs off the ground, and was out of control when he made the tackle.

But on appeal, the judge noted that the recorder took no account of the fact that the incident happened in full view of a fully FA-accredited referee, who did not consider it a foul and took no disciplinary action.

‘The fact that such officials have decided to take no action, or relatively minor action, is, of course, not determinative,’ said the judge. ‘It is, however, a matter to be engaged with by the court, in determining whether actionable negligence has occurred.’

He added: ‘The recorder was faced with the striking scenario in which a professional referee, with an unarguably clear view of the tackle, did not award a foul, let alone show Mr Harris a red card. That feature was part of the evidential landscape which the recorder was required to traverse.’

Fulham successfully appealed the negligence finding on three other grounds: namely that the recorder failed to apply the test set out in authorities for personal injury claims in sports, he did not give adequate reasons for rejecting the evidence of defence expert George Cumming (a former FIFA head of refereeing) and that he failed to take into account the realities of football playing culture.

On the final ground, the judge noted that the recorder had accepted that Harris aimed for the ball, but ‘could not be sure what else he might contact, or do’. The judge said this was a material error, which ‘purports to set a standard for reckless or quasi-reckless behaviour in the context of professional football, which is far below what is needed to establish such liability’.

He ordered that a new trial be held.

Matthew Harpin, a partner at defendant firm Browne Jacobson, who acted for Fulham, said the ruling confirmed the test for civil liability in a competitive sports setting should be set very high. ‘This is a really significant decision dealing with the circumstances in which a court may reach a finding of civil liability following an allegedly dangerous or reckless tackle in a competitive game of football,’ he added.