England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MILTON KEYNES COUNTY COURT
HIS HONOUR JUDGE HOROWITZ QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/10/2011

Lord Justice Longmore:

1. Jack Sutton is currently at Nottingham Trent University and has from an early age enjoyed playing rugby football for his local club Syston Rugby Football Club Ltd the defendants in the action and appellants in this appeal. Unfortunately he had a bad accident on 2^nd July 2007 while playing aged 16½ in a pre-season training system. Once the new season was to begin in autumn of that year he would join the under 17 Colts; but at the time he was training with the under 16 Colts and the under 17 Colts were also training at that time. Three coaches were present including Mr Chris Tressler who was the under 16s coach and a Mr Robert Coulson. There came a time when the coaches decided to change the training session into an informal touch or "tag" rugby match blending the two age groups between the two sides. The rule of touch or "tag" rugby is that a player in possession of the ball must drop the ball if touched or "tagged" by an opposing player. There was thus no room for normal rugby tackles.
2. About 30 minutes into the match Mr Tressler passed the ball to Mr Sutton, who saw an opening for a touch down try. As he was on the point of scoring, he was diving and, at the same time, tagged. He fell onto his right knee which was gashed by a plastic object, found by the judge to have been a broken off part of a cricket boundary marker, which had been left behind by members of a cricket club who had used the area a few days earlier. The marker itself had been a white triangle attached to a stake; the triangle had become broken off leaving only a stub in the grass turf.
3. Mr Sutton's knee injury was severe and took many months to heal. He participated in but could not enjoy a family surfing holiday in Cornwall. He was in pain for many months and, although he is happily now recovered and able to play rugby again, he cannot take part as fully as he once did because he is always thinking of what happened that July. He is likely to have progressive trouble with his knee as he progresses towards late middle age. If the Club is liable to him, it is agreed that the appropriate measures of damage is £54,000.
4. Mr Sutton maintains that one of the 3 coaches should have inspected the pitch before the training session began and that none of them did so; if that had been done, he says further that the stub of the stake would have been discovered, would have been removed before play began and he would have suffered no injury.
5. The Club admits that they owed a duty of care, to Mr Sutton and others participating in the training session under the Occupiers Liability Act 1957 to take such care as was reasonable in all the circumstances of the case to see that Mr Sutton (and their other visitors) would be reasonably safe in using the Club's premises. They further admit that there should have been a general inspection of the pitch before the training session began and that no such inspection took place. But the Club asserts that such general inspection would only be for obvious obstructions or difficulties (such as broken glass or dog excrement) and could not be such a detailed inspection as to discover a broken off part of a cricket marker especially if it did not obtrude above the surface of the grass, as the stub in this case did not.
6. The judge held in para 33 and 34:-

"A check is to be conducted by walking across the pitch covering all or most of the ground at a reasonable walking pace. Phil Smith's "quick walk" is not quite enough. On this occasion the inspecting coach or coaches would need to have in mind that the cricketers had recent use of the pitch with plastic markers. It may have been courteous and even required as between the cricket club and the rugby club that the cricketers' obligation was to remove all traces of their presence but that does not of itself delegate or discharge the rugby club's duty as occupiers of the Club premises and towards players using the pitch for the different purpose of a later rugby match.

Second in any event, while not required to investigate below every blade of grass it seems to me a slightly more careful degree of attention needed to be paid [to] the touch down ends of the pitch where players are to be expected to dive or fall onto the ground."

The reference to Mr Smith was to Mr Phil Smith, deputy chairman of the Club and assistant groundsman, who said in the course of his evidence that a check of the pitch should be made but that a quick walk over the pitch should be sufficient.

7. In relation to causation, Mr Tressler said in his written evidence that, once he was sure that Mr Sutton was as comfortable as could be expected while waiting for an ambulance, he went back to the place of the accident and saw a stub "sticking out of the soil … right down below the level of the grass". In his oral evidence he said

"You would have had to go down on your hands to see it."

The judge thought this was an attempt by Mr Tressler to improve on his written evidence and rejected that piece of oral evidence. He then concluded

"I am not persuaded that a reasonable inspection – which did not take place – would not have been likely to have come across the cricket marker stump that caused this injury."

8. The club submits

i) a quick walk over inspection would have been sufficient;

ii) even if a more detailed inspection had taken place, such inspection would not have revealed the existence of the stub of the cricket marker.

Mr Sutton submits

i) a detailed inspection of the pitch should have taken place;

ii) such detailed inspection would, on the balance of probabilities, have revealed the stub and it would have been removed;

iii) in any event the judge's finding on causation was a finding of fact with which this court should not interfere.

Pitch inspection

9. By the time of final submissions at trial, the club had accepted that there should have been an inspection of the pitch. That is obviously correct. The Rugby Football Union ("the RFU") itself provides risk assessment guidelines and states that such guidelines are for the purposes of identifying any unsafe condition. The RFU also provides a safety check list which includes at paragraph 2 a recommendation to check the ground for foreign objects "such as glass, concrete, large stones, dog waste". Although these guidelines refer to matches, it seems to me that this duty should also apply to training sessions and the Club did not seriously dispute that.
10. The judge had no disinterested expert evidence to assist him and had to do his best with such evidence as the witnesses for the parties had provided. He rejected the suggestion that a quick walk over the pitch would be sufficient and decided that all or most of the ground should be covered "at a reasonable walking pace". So far, it seems to me that the judge was right.
11. He then added that a "slightly more careful degree of attention" should be paid to the touch down ends. Here I part company from the judge. It seems to me that, whatever the appropriate standard of inspection is, it should extend to the pitch as a whole rather than that there should be different standards depending on what part of the pitch is being inspected. It is true that the particular training session in this case was a touch rugby session but the coaches could easily have decided to follow it (or precede it) with a full match training session when tackles (and a consequent fall) could happen on any part of the pitch. It is, moreover, unnecessarily complicated to require different standards of care for different parts of the pitch.
12. The Club suggested in argument that it would be enough if the pitch were inspected by someone such as (in this case) one of the coaches walking round the perimeter; I would not accept that a limited inspection of that kind would discharge the Club's duty of care. There is, moreover, no suggestion in the RFU's own guidelines that such a limited inspection would be appropriate.
13. It is important that neither the game's professional organisation nor the law should lay down standards that are too difficult for ordinary coaches and match organisers to meet. Games of rugby are, after all, no more than games and, as such are obviously desirable activities within the meaning of section 1 of the Compensation Act 2006 (neither party suggested that this section in any way altered the common law position). I would therefore conclude that, before a game or training session, a pitch should be walked over at a reasonable walking pace by a coach or match organiser (or someone on their behalf) and that, if that is done, that will satisfy a Club's common law duty of care in relation to such inspection. If, of course, more than one coach or organiser is available, each such person could inspect a pre-agreed part of the pitch.

Causation

14. If an inspection of this kind had been conducted, would it have revealed the stub which caused Mr Sutton's injury? It is axiomatic that it is for a claimant to prove that a defendant's breach of duty caused the loss for which he claims, see Fairchild v Glenhaven Funeral Service [2003] 1 AC 32 at paragraph 8 per Lord Bingham or Cornhill.
15. On this question, the judge's conclusion cannot be decisive in this court. First causation is a question of mixed law and fact; secondly, insofar as the judge imposed a higher standard of inspection in relation to the touch down ends of the pitch than for the rest of the pitch, he was in my judgment wrong to have done so. It is in the third place fair to say that the judge, in any event, did not display overwhelming confidence in his own conclusion by delivering it in the form of a double negative – "not persuaded that a reasonable inspection ….. would not have been likely to have come across the cricket marker stump". In any event the court must deal with the Club's primary submission that the judge was wrong to find on the evidence that Mr Sutton had proved his case on causation.
16. In these circumstances the court has little option but to decide the question of causation by reference to its own view of the correct legal standard. The relevant evidence was mainly given first by Mr Sutton himself and secondly by Mr Tressler. Mr Sutton in his witness statement said he had not observed the marker (namely, what was left of it) as it was below the level of the grass. He also stated to his medical adviser that the stub would not have been immediately visible on a casual inspection. Of course this later statement is of limited value if the inspection should not have been casual but (as I would hold) conducted at a reasonable walking pace. As already mentioned, Mr Tressler (who was the only witness who actually saw the stub at the time of, although after, the accident) said the stub was sticking out of the soil below the level of the grass. The fact that the judge thought that Mr Tressler had sought to improve on this in his oral evidence is no reason to reject what Mr Tressler said in his written evidence and the judge did not say that it was.
17. If one adds to this the facts that some of the witnesses recorded the grass as being lush and that Mr Sutton's team-mate, Mr Ashley Rideout, who attended to Mr Sutton immediately after the accident did not observe the stub in the grass, I can only conclude that even a reasonable "walk over the pitch" inspection would be unlikely to have revealed the stub or, at least, that the claimant has not been able to prove that such an inspection would, on the balance of probabilities, have revealed the stub's existence.

Conclusion

18. I fear, therefore, that this appeal will have to allowed. I recognise that this will be a great disappointment to Mr Sutton but hope that he can appreciate that this court has to look at the case from a wider perspective than just his own injury and must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from the courts than it should be.

Costs – Summary Assessment

19. We should summarily assess the appellant's costs since they will unfortunately have to be paid by the respondent. We think that the sum claimed is proportionate save that there seems to be a somewhat excessive amount of time spent by the partner in the case and that the advice given by leading counsel (effectively a second opinion) should not be charged to the respondent. Subject to any further argument before hand-down we summarily assess the costs, therefore, at £12,500.00.

Lord Justice Rimer:

20. I agree.

Mr Justice Warren:

21. I also agree.