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+ Altyfans.co.uk - Altrincham Football Club Fans Forum » General Category » Altrincham FC First Team
 Tom Kearney v Wrexham - High Court Tomorrow
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Author Topic: Tom Kearney v Wrexham - High Court Tomorrow  (Read 8009 times)

markecky

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Tom Kearney v Wrexham - High Court Tomorrow
« on: September 03, 2012, 12:38:27 AM »

Just seen on the wrexham forum that Tom Kearney is suing Wrexham for the tackle by Sinclair that ended his career.

I don't think I have ever been more incensed than at the standing ovation Sinclair got when he was red carded and the booing Kearney got on the stretcher.

This pending action apparently caused a real holdup to the Wrexham fans takeover as well.

Thought it might have been a bit higher profile.
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D.A. ALTY

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #1 on: September 03, 2012, 01:20:04 AM »

Just seen on the wrexham forum that Tom Kearney is suing Wrexham for the tackle by Sinclair that ended his career.

I don't think I have ever been more incensed than at the standing ovation Sinclair got when he was red carded and the booing Kearney got on the stretcher.

This pending action apparently caused a real holdup to the Wrexham fans takeover as well.

Thought it might have been a bit higher profile.
wrexSCUM he shoud hav bin chaged with ABH, actual bodily harm,  T**t, i could go on , but i will let the ALTY faithfull do so ..........
« Last Edit: September 03, 2012, 08:18:12 AM by markecky »
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distancetraveller

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #2 on: September 03, 2012, 09:01:17 AM »

Just seen on the wrexham forum that Tom Kearney is suing Wrexham for the tackle by Sinclair that ended his career.

I don't think I have ever been more incensed than at the standing ovation Sinclair got when he was red carded and the booing Kearney got on the stretcher.

This pending action apparently caused a real holdup to the Wrexham fans takeover as well.
Thought it might have been a bit higher profile.
wrexSCUM he shoud hav bin chaged with ABH, actual bodily harm,  T**t, i could go on , but i will let the ALTY faithfull do so ..........
[/b]

I will start then - Sinclair is the man who should be held responsible - One odious T**t
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chesteralty

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #3 on: September 03, 2012, 09:13:07 AM »

Whilst I still remember that tackle (and certain Wrexham fans reaction to it), surely the current owners of Wrexham aren't to blame.
Who is he suing, exactly?
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The Thriving Jezza

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #4 on: September 03, 2012, 09:53:24 AM »

It comes down to the old question of non league players not being insured.....this has been resolved now hasn't it?

Personally I think it should be the players responsibility to insure themselves as many self employed people do to protect their income in case of illness...if not the player then it should be the player's club insuring it's own players or a sort of thrid party insurance to cover claims against.

I didn't see the tackle so can't comment on how reckless it was and what intent was there......I assume there is video footage of it somewhere for the court to view....if it was reckless then there is legal precedent in tom's favour.

I suppose you could say the current wrexham owners took over knowing there was a claim outstanding?

the semi pro (or in wrexham's case fully pro) football pitch is still a workplace so if someone gets injured due to someone's recklessness then i guess they have a claim just as I would if a shop worker dropped a can of beans of my head in tescos.....I'd guess tesco were insuured against this though and there is mitigation in that as a footballer you are taking part in a dangerus sport that you know can cause injury....
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Romeo 48

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #5 on: September 03, 2012, 09:53:57 AM »

One assumes, the club. As did Marcus Hallows with Ashton United. The club is deemed responsible for the actions of its employees, and as Wrexham aren't a "newco" the new owners could cop for it.
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Holmes Chapel Alty

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #6 on: September 03, 2012, 12:27:53 PM »

Whilst there is legislation for this type of incident the insurance side of it is a little tricky.

In Insurance there has to be negligence in order to be successful in a claim. This would either fall under Employers Liability or Public Liability.

Tom was employed by Altrincham FC, but in no way can Altrincham FC be held responsible as they were not negligent in anyway. Hence the claim will fall under Public Liability.

The issue for Public Liability is that any insurance policy may include an exclusion of member to member insurance. It is this aspect that will be looked at.

If there is a member to member exclusion under the Wrexham FC policy, then any possible claim would fall outside of that and Wrexham FC may have to pay it themselves following a court order.

I then can see an arguement from Wrexham to say that whilst Sinclair was employed by Wrexham, how can Wrexham FC be held negligent for the actions on the pitch by Sinclair. In my opinion I dont think they can.

The possible claim I feel would therefore fall against Sinclair himself and compensation may have to be paid by him personally.

Additionally there may well have been a Personal Accident policy purchased either by Altrincham FC or individually by Tom Kearney, which may pay out to one or the other party, if it included sport at amateur level. Football would not be classed as a dangerous sport, however as it is at the level it is at it would have needed to be disclosed to insurers in the first instance.

Ultimately the court action i think will be to either hold Sinclair responsible and he would be ordered to pay damages or it is possible there is legislation which would indeed hold Wrexham FC accountable or that might be something the courts are looking at as a new precident.

Please note I am an Insurance Broker, not a lawyer. As such i am not authorised to provide any legal advise and this information is provided without prejudice. Anyone seeking advise should contact a solicitor. OK covered my ass now - phew.
« Last Edit: September 03, 2012, 12:29:42 PM by Teaser »
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wayno

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #7 on: September 03, 2012, 12:31:40 PM »

Whilst there is legislation for this type of incident the insurance side of it is a little tricky.

In Insurance there has to be negligence in order to be successful in a claim. This would either fall under Employers Liability or Public Liability.

Tom was employed by Altrincham FC, but in no way can Altrincham FC be held responsible as they were not negligent in anyway. Hence the claim will fall under Public Liability.

The issue for Public Liability is that any insurance policy may include an exclusion of member to member insurance. It is this aspect that will be looked at.

If there is a member to member exclusion under the Wrexham FC policy, then any possible claim would fall outside of that and Wrexham FC may have to pay it themselves following a court order.

I then can see an arguement from Wrexham to say that whilst Sinclair was employed by Wrexham, how can Wrexham FC be held negligent for the actions on the pitch by Sinclair. In my opinion I dont think they can.

The possible claim I feel would therefore fall against Sinclair himself and compensation may have to be paid by him personally.

Additionally there may well have been a Personal Accident policy purchased either by Altrincham FC or individually by Tom Kearney, which may pay out to one or the other party, if it included sport at amateur level. Football would not be classed as a dangerous sport, however as it is at the level it is at it would have needed to be disclosed to insurers in the first instance.

Ultimately the court action i think will be to either hold Sinclair responsible and he would be ordered to pay damages or it is possible there is legislation which would indeed hold Wrexham FC accountable or that might be something the courts are looking at as a new precident.

Please note I am an Insurance Broker, not a lawyer. As such i am not authorised to provide any legal advise and this information is provided without prejudice. Anyone seeking advise should contact a solicitor. OK covered my ass now - phew.
oh stop teasing us
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Holmes Chapel Alty

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #8 on: September 03, 2012, 12:43:33 PM »

lol.
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Ian J

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #9 on: September 03, 2012, 01:30:53 PM »

The new owners of Wrexham are likely to have acquired the shares via a new holding company.

I would imagine that during the due diligence process, the prospect of a potential claim came up and there is some kind of indemnity in place so that if the Club are successfully sued/found liable, responsibility for paying up lies with the former owners. Either that or cash for such a scenario was held with solicitors out of the sales proceeds until the case had been resolved and either paid to the former owners (assuming the Club was not guilty), or in settlement to Kearney.
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York Alty

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #10 on: September 03, 2012, 01:50:21 PM »

I always feel a bit uneasy about anything involving the law and sport in general. However as Tom was playing for Alty that day i hope he wins.

What can be learnt?

Players - make sure you're insured, make sure it's up to date.  Make sure it covers friendlies etc.

Clubs - make sure you've got all the paperwork required.  If clubs pay then make sure it includes all the squad etc.

Fans - and in this case I mean the divvies at Wrexham - when a player goes off on a stretcher, applaud the lad.  It could be his last game.  Show some bloody respect.
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RageAgainstTheFirstTeam

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #11 on: September 03, 2012, 02:11:20 PM »

That's odd, I only updated his Wikipedia article yesterday, which still stated he played for "Conference National team Altrincham"
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blackpoolalty

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #12 on: September 03, 2012, 04:01:38 PM »

I thought clubs provided insurance cover to their players? Didn't Keith Russell get some sort of private payout that then prevented him from playing semi pro football above a certain level?
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Romeo 48

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #13 on: September 03, 2012, 04:17:17 PM »

I thought clubs provided insurance cover to their players? Didn't Keith Russell get some sort of private payout that then prevented him from playing semi pro football above a certain level?
I may be wrong, but I think that was a blanket policy taken out by the Football League in pre-Premier League days. Hence a player couldn't turn out for another club covered by that policy after a payout had been made.
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ancoats alty

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Re: Tom Kearney v Wrexham - High Court Tomorrow
« Reply #14 on: September 03, 2012, 04:32:28 PM »

Just to add some further analysis on the case, as per what Teaser wrote, I am a solicitor who was part of the team who acted on the Ben Collett v Middlesbrough FC High Court case in 2008. I was involved with the trial and general work around the quantum (the amount of loss claimed) and the liability, which I believe is being decided in Tom's case today, was already settled before my involvement.

Tom's case will be that Frank Sinclair and Wrexham FC, who are vicariously liable for their employees, broke their duty of care to Tom and ended his career. The existence of a duty of care here is not in doubt, the elements of proximity and the defendant being placed in a position of responsibility is clear.

The issue is the breach and I suspect this is the crux. I did not see the tackle but a breach of duty would have to involve Sinclair not applying due care and skill in the challenge. Obviously, the standard set for the breach will be different in the circumstances. A conference player would not be expected to have the same degree of skill as a Premier League player. However, as we all know, there are challenges which are wreckless at any level, which inevitably get red cards, this would fit the 'reasonableness' test of whether the due care and skill was applied. I'll leave it for the Court to decide. Obviously, once that's proved then causation and loss should be fairly comfortable (unless Tom's surgeon is somehow to blame for his injury not healing and thereby ending his career).

The BIG issue from the Collett case was that clubs had always taken out insurance policies to protect them from the loss that their own player would be injured and have their career ended. However, as a result of the case, it became established that as clubs owed a duty to other players as a reuslt of their own employee's actions, they should/would have to take out insurance for claims made against them as a result of their players' negligent actions. Therefore, as I saw Middlesborough's insurers pay out 4.5m to Ben Collett, I would expect that Wrexham will have had cover in place (much like any business will insure against losses caused by an employee's actions), or would have retrospectively purchased insurance cover for the eventuality of losing this case.

Anyway, let's hope Tom wins.

Ancoats Alty
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 Tom Kearney v Wrexham - High Court Tomorrow