ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE SWEETING
QB-2020-003439
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE NICOLA DAVIES
and
LORD JUSTICE EDIS
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MR TOM CLARK |
Defendant |
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- and - |
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MR OMAR ELBANNA |
Respondent |
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Jamie Clarke (instructed by Slater & Gordon) for the Respondent
Hearing date: 19 May 2025
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Crown Copyright ©
Lady Justice Nicola Davies:
"1. In the sporting context, within the law of negligence, the legal test is whether the Defendant failed to exercise such degree of care as was appropriate. By reference to the evidence before the Judge, and applying the appropriate legal test as determined by the appeal court, the defendant was reckless. Therefore (by that higher, more stringent, standard) the legal test in this context is satisfied…And/or
2. In the sporting context, within the law of negligence, the legal test is whether the Defendant failed to exercise such degree of care as was appropriate. By reference to the evidence before the Judge, the appeal court does not see how it can possibly be said that the Defendant was not negligent. Therefore, the legal test in this context is satisfied. It follows that the Defendant is liable to the Claimant for an amount to be assessed."
The facts
"13. It was reasonably foreseeable that the Defendant's conduct in colliding with the Claimant in the course of the game as aforesaid carried a significant risk of causing serious injury to the Claimant.
14. The Defendant knew or ought to have known that it was reasonably foreseeable that his conduct in colliding with the Claimant in the course of the game as aforesaid carried a significant risk of causing serious injury to the Claimant.
15. In all the circumstances the Defendant breached the duty of care that he owed the Claimant to take all such care towards the Claimant as was objectively reasonable in the prevailing circumstances.
16. Without prejudice to the generality of the foregoing, more particularly the Defendant was negligent / in breach of duty as follows:
PARTICULARS
a. (For reasons known only to the Defendant) the Defendant ran into collision with the Claimant as described above in a negligent, unnecessary, reckless and dangerous manner, and in so doing applied unnecessary and significant force by colliding with his body / arm / shoulder into contact with the Claimant's spine;…"
The judge's findings of fact
"18. What can be seen on the video (and the facts as I find them from the video recording) is as follows. At kick-off the Claimant is standing on the 15-metre line or just to the left of it facing across the pitch towards the kicker. He is the first opposing player directly in front of the Defendant. His left foot is in contact with the 15-metre line. He is about 12 metres from the halfway line. He is looking across the field at the ball. He pivots on the spot as he watches the ball in the air so that he is facing towards his own team and to where the ball is likely to land. The receiving Cheltenham player, Mr Hillier is also on the 15-metre line and so directly behind the Claimant. The Claimant is still standing to the left of the 15-metre line but his right foot is now in contact with it as a result of his turn through 90 degrees. He brings his left foot together with his right foot so that both feet are on the 15-metre line. He takes a short step forward with his left foot (towards Mr Hillier) and then brings his right foot forward past his left foot and out to the right. At that point he is struck from behind. The ball is still high in the air (towards the top of the video frame in which the collision occurs). The Claimant is, at all times, looking at the ball and turned away from the Defendant. He does not see and could not have seen the Defendant running towards him from the moment he turned to face his own team.
19. As the kick-off is taken the Defendant runs forward at speed. He takes a number of strides before reaching the halfway line and is sprinting as he crosses it. He then moves on to the 15-metre line. From the halfway line to the point of collision (some 12 metres) he takes about 11 strides. The Midsomer second-row, Mr Goddard is running level with the Defendant to his left and is positioned further into the pitch beyond the 15-metre line. Mr Goddard appears to anticipate that he may be in a position to tackle the receiver and adjusts his foot position and checks his run in order to time his tackle (in his evidence he said he was making sure that he did not tackle the receiver before he actually had the ball or whilst he was in the air). The Defendant is at about the same position as Mr Goddard at this point but does not slow or adjust his position. He still has about 5-6 strides left before the collision. He continues at full speed on the same line, heading for the Claimant. He runs directly along the 15-metre line. His feet can be seen to make contact with it. He does not deviate from his line until the penultimate stride. He moves to the right as the Claimant is also stepping off the 15-metre line.
20. Moments before the collision (with about two strides to go), the Defendant does change his body position. He described it as "bracing for the impact". He does so before the Claimant has moved from the 15-metre line and as he, the Claimant, has brought his feet together. The Defendant does not appear to slow down or try to maximise the area of contact; in fact, quite the reverse. The Defendant's change of position involves him bringing his arms in and rotating his upper body so that his left upper arm and shoulder dip and are driven into the centre of the Claimant's upper back. The force is plainly considerable. The Defendant is 5 feet 7 inches tall and weighed 80 kilogrammes on his own estimation. The Claimant was a much taller and heavier prop forward. The force of the impact throws the Claimant forward even though he is moving partly sideways."
The laws of rugby
The law – legal principles
"in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff's injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff's injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the 'rules of the game.' Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances."
"The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast-moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed…"
"…. As in Smoldon, there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required."
At para 28 Tuckey LJ observed that it is not possible to "characterise momentary carelessness as negligence."
The judge's conclusions
"27. Just before the impact the Defendant appears to alter his line to move to the right, but he does that as the Claimant is also moving off the 15-metre. It appears to me to be as a much a consequence of the Defendant's rotation of his upper body to bring his shoulder forward as any change in the position of his legs. Mr Debney described this as "tracking" the Claimant. He plainly considered that the Defendant intended to collide with the Claimant's back and had altered his line to make contact with his left shoulder as his target moved.
28. Mr Cuthbertson attributed the collision to the fact that the Claimant had moved in a perpendicular direction at 90° to the 15-metre line and towards the touchline. He said he could not think of any tactical reason for moving wholly in that direction and described it as unusual. I agree with Mr Cuthbertson that the obvious course was to run diagonally and then around the back of the ruck or maul which was likely to form around the receiver. The Claimant would then have been able to rejoin play without being offside and without impeding the Midsomer players. However, I cannot identify the 90° movement that Mr Cuthbertson refers to. His observation that it would have been an illogical move tends to confirm the view I take that it did not occur. The Claimant was just completing his pivot and starting to run when the accident occurred. That was his evidence. His momentum was to the right but, if anything, the last images of his body position before he was struck are consistent with the sort of running direction that Mr Cuthbertson was referring to as the diagonal route he would have expected him to take. I doubt, in fact, that it would have made any difference to the collision whether the Claimant intended to go at 45° or 90° to the 15-metre line in returning to where he could be involved in the game. He was struck just as he was about to move off the 15-metre line.
29. Mr Cuthbertson suggested that one option open to the Claimant was not to move and that this was the safest course. However, during cross examination he accepted, as did the Defendant, that he would normally expect a player in the Claimant's position to move. For my part I can think of no reason why the Claimant would stand still or why that would be a realistic expectation on the part of any opposing player. The Defendant could see that the Claimant's back was turned towards him. The Claimant was not in a position where he needed to choose a "safe" option. Mr Cuthbertson accepted that the Defendant should have anticipated that a player might move; the likely movement being diagonally to the right.
30. Had the Claimant stayed perfectly still during the Defendant's run towards him the Defendant might just have just passed him with a glancing contact but for all practical purposes from the moment the Defendant moved onto the 15-metre line he was running directly at the Claimant as he stood on or next to the same 15-metre line. In order to avoid any contact with the Claimant the Defendant would either have to have slowed down, deviated from his line or the Claimant would have to have moved out of the way. With 4 to 5 strides to go the Claimant was directly in the Defendant's path with his back to the Defendant. A collision was not inevitable at that point but it required the Defendant to reduce his speed or alter his line if it was to be avoided. He did neither. Mr Goddard, to the Defendant's left did check his speed. It is apparent that the Defendant could also have done so. In fact he chose to run so close to the Claimant that, at best, he would have been brushing past him at speed. He was courting the risk that even a slight movement would result in a forceful contact, with most of the kinetic energy being transferred to the Claimant, given that he was virtually static in comparison to the Defendant.
31. The Defendant's evidence, in his witness statement, was predicated on the assertion that the Claimant was to the left-hand side of the 15-metre line so that there was a clear path and that he, the Defendant "instinctively moved slightly to my right as I was going to go past him to where I thought the ball was going to come down". On this account a movement to the right occurred before the Claimant moved onto the 15-metre line. It would in turn have required the Defendant to move off the 15-metre line. In his oral evidence the Defendant said that he moved to his right because the Claimant had moved into his path. That lies uneasily with what can be seen on the video recording where the Defendant's feet are still on the line less than two strides before the impact.
32. I preferred Mr Debney's evidence as to what could be seen on the video recording supported by the evidence of Mr Kirchner whose position on the field gave him a view that others did not have. Mr Kirchner's immediate response and the terms of his complaint, relayed to the referee via Mr Hillier and picked up in the recording, could not have been the product of reflection after the event nor coloured by knowledge of the seriousness of the injuries. Mr Debney had been a professional referee and his evidence, in my view, provided a more realistic assessment of the behaviour which could be observed. In relation to the Defendant's actions just before the collision he said; " ...in my experience players who are trying to soften the impact on an opponent do not usually brace for impact and lead with the shoulder. They should do the opposite and make the contact area between them and the opponent as large as possible to dissipate the energy of the impact." The conclusions in his report included the following:
"The Claimant had no opportunity to prepare or brace himself for the impact.
In my opinion, the Defendant had more than enough time and the opportunity to entirely avoid or at least moderate his contact with the Claimant and avoid colliding with him so forcefully.
The Defendant makes no attempt to slow down, deviate away from the Claimant or soften the contact. Each of these would have been expected in this case and it happens in almost every rugby game where a player commits to contact but pulls out at the very last moment.
A player of the Defendant's stated experience should have known how to avoid contact with the Claimant and anticipate any potential actions by the Claimant."
33. These conclusions encapsulate the criticisms that can be made of the Defendant's actions on the playing field and are borne out by the evidence for the reasons set out above. The collision was avoidable or at the very least could have been reduced to a soft contact which would not have caused injury. Whether or not the collision was intentional, to have run directly at the Claimant at full speed and to have collided with him in the manner in which the Defendant did was reckless. It amounted to playing an opponent without the ball in contravention of the laws and courted the risk of injury; a risk which eventuated with catastrophic consequences for the Claimant. In the circumstances I conclude that liability has been made out."
The appellant's submissions in response to the Respondent's Notice
Discussion and conclusion
(i) For all practical purposes from the moment the defendant moved on to the 15-metre line he was running directly at the claimant as he stood on or next to the same 15-metre line;
(ii) In order to avoid any contact with the claimant, the defendant would either have to slow down, deviate from his line or the claimant would have to move out of the way;
(iii) With 4 to 5 strides to go, the claimant was directly in the defendant's path with his back to the defendant;
(iv) A collision was not inevitable at that point but it required the defendant to reduce his speed or alter his line if it was to be avoided, he did neither;
(v) The defendant chose to run so close to the claimant that, at best, he would have been brushing past him at speed;
(vi) The defendant was courting the risk that even a slight movement would result in a forceful contact, with most of the kinetic energy being transferred to the claimant, given that he was virtually static, in comparison to the defendant.
i) The claimant had no opportunity to prepare or brace himself for the impact;
ii) The defendant had more than enough time and the opportunity to entirely avoid or at least moderate his contact with the claimant and avoid colliding with him so forcefully;
iii) The defendant makes no attempt to slow down, deviate away from the claimant or soften the contact. This would have been expected in this case and it happens in almost every rugby game where a player commits to contact but pulls out at the very last moment;
iv) A player of the defendant's experience should have known how to avoid contact with the claimant and anticipate any potential actions by the claimant.
Conclusion
Edis LJ:
Bean LJ: