BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Clark v Elbanna [2025] EWCA Civ 776 (24 June 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/776.html
Cite as: [2025] EWCA Civ 776

[New search] [Printable PDF version] [Help]

Neutral Citation Number: [2025] EWCA Civ 776
Case No: CA-2024-000788

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE SWEETING
QB-2020-003439

Royal Courts of Justice
Strand, London, WC2A 2LL
24/06/2025

B e f o r e :

LORD JUSTICE BEAN
LADY JUSTICE NICOLA DAVIES
and
LORD JUSTICE EDIS

____________________

Between:
MR TOM CLARK
Defendant
- and -

MR OMAR ELBANNA
Respondent

____________________

Neil Block KC and Jack Holborn (instructed by Weightmans LLP) for the Defendant
Jamie Clarke (instructed by Slater & Gordon) for the Respondent

Hearing date: 19 May 2025

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.00am on 24 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    Lady Justice Nicola Davies:

  1. This is an appeal in respect of the decision of Sweeting J (the judge) who in a judgment dated 20 March 2024 made a finding of liability in favour of the claimant/respondent. The claim arises out of a collision between the defendant/appellant and the claimant during an amateur rugby match as a result of which the claimant suffered spinal and other injuries. The trial addressed the issue of breach of duty, it being conceded that the collision caused injury to the claimant's spine.
  2. Permission to appeal was granted on limited grounds by Whipple LJ on 19 December 2024. They focused on the test to be applied in respect of the appellant's alleged recklessness; the adequacy of the judge's reasons in reaching his conclusions; the relevant legal test when determining breach of duty in a sporting context and the judge's conclusion that the appellant was reckless given the circumstances of the collision namely during a game of rugby. Permission to appeal the judge's findings of fact was refused.
  3. By a Respondent's Notice dated 9 April 2025, the respondent sought to uphold the judge's order but upon different or additional grounds namely:
  4. "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."

  5. At the outset of the hearing before this court, Mr Block KC, who appeared on behalf of the appellant, was asked to address the issues raised in the Respondent's Notice. We are grateful to him for the focus and clarity of his submissions. After we had considered those submissions, Bean LJ stated that the court was satisfied that the judge's finding at [33] of the judgment namely that the defendant was reckless, encompassed a finding that the defendant was negligent to a degree which distinguished his conduct from a momentary error of judgment. Further, Bean LJ stated that the court was not persuaded that such a finding of negligence was erroneous and that it appeared to the court that the Respondent's Notice was well founded. In such circumstances the court concluded that the appeal should be dismissed and no useful purpose would be served by the court embarking upon an analysis of the law of recklessness. What follows are the reasons for upholding the Respondent's Notice.
  6. The facts

  7. On 7 October 2017 the claimant and the defendant were taking part in an amateur rugby match, played under the World Rugby Laws of the Game (the laws of rugby). The claimant, as prop forward, was playing for Cheltenham Tigers (Cheltenham) and the defendant, at open side flanker, was playing for Midsomer Norton (Midsomer). Following half time, and as the game restarted, the defendant ran forward to chase the ball and collided with the claimant causing him to suffer a serious spinal injury at the C5/C6 level.
  8. In the Particulars of Claim dated 27 January 2021, it was alleged that the collision was unnecessary and was negligently made by the defendant with reckless disregard for the safety of the claimant, contrary to the laws of rugby. The defendant was alleged to have committed an act of foul play and dangerous play. The Particulars of Claim contained the following:
  9. "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;…"
  10. The legal basis of the claim was pleaded in negligence. The word 'reckless' and the phrase 'reckless disregard for the respondent's safety' were used in the claimant's pleading.
  11. The judge heard evidence from the claimant and the defendant, from other participants in the game and from experts, Mr Debney on behalf of the claimant and Mr Cuthbertson on behalf of the defendant. The experts were instructed to provide evidence in relation to the relevant laws of the game and their application to the collision and to "any other relevant matters to the collision". The judge noted that this latter task principally involved commentary on what could be seen in a video recording of the collision. The judge, and this court, have viewed two video recordings of the collision which were taken for refereeing purposes. The recording is in both real time and slow motion, each recording is between 1 and 2 minutes in length. The videos provide a clear view of what occurred and were of considerable assistance to this court, and clearly of assistance to the judge.
  12. The judge's findings of fact

  13. At [16] – [20] the judge recorded what could be seen on the video and the facts as he found them from the recording. It includes the following:
  14. "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."
  15. At [21] it is recorded that the claimant described feeling a "massive impact". The judge observed that the claimant appears to be completely unaware that he is about to be struck from behind, he does not brace himself or turn or curl to protect his spine. In his evidence to the court, written and oral, the claimant stated that he hardly moved prior to the collision. Another player described the claimant as stepping "slightly to the right" before he was struck hard in the back by an opposing player using his forearm. The judge notes that this accords with what can be seen on the recording.
  16. At [22] it is recorded that one of the claimant's teammates playing at full back, whose line of vision went directly through where the receiver was standing and where the collision occurred, stated that the defendant had intentionally ran into and knocked over the claimant. In his evidence, the teammate said that he did not recall the claimant stepping to the right because he did not move very much at all. The defendant had travelled something in the order of 12 metres whilst the claimant had hardly moved a metre. It was this player's opinion that the defendant had made contact on purpose; he saw the defendant divert into the claimant as if he was deliberately veering into him. He regarded it as foul play as the defendant could have avoided the claimant or pulled up before the collision or taken the power out of the impact. Following the collision this teammate immediately spoke to the captain and as a result, the captain approached the referee. It is undisputed that the referee did not see any or at least all of the collision and was not called as a witness at the trial. No sanction was imposed upon the defendant.
  17. The laws of rugby

  18. The laws of rugby are set by its global governing body, World Rugby, and are necessary in order to ensure that the game is played safely and fairly. At [11] the judge noted that Law 10.4(f) was agreed to be the most germane of the potentially applicable rules. It provides: "Playing an opponent without the ball. Except in a scrum, ruck or maul a player who is not in possession of the ball must not hold, push or obstruct an opponent not carrying the ball." At [12] the judge recorded that within this general prohibition there are limited circumstances in which players who are not in contact with the ball may deliberately make contact with each other, eg when a player and an opponent are running for the ball, they are permitted to push each other shoulder to shoulder (Law 10.1(a)). Law 10.4(e) characterises "playing a player without the ball" as dangerous play.
  19. The claimant's club cited the defendant for foul play. A disciplinary panel hearing in November 2017 decided that there was no incontrovertible evidence or grounds to rule that the collision had been either dangerous charging or shouldering or that any acts contrary to good sportsmanship had occurred. At an appeal, which was a review, the panel concluded that the decision should be upheld because it was not unreasonable. It is of note that the issue before the panels was one of foul play, it was not one of negligence.
  20. The law – legal principles

  21. No issue is taken with the judge's summary of the legal principles which apply in the context of a sporting contest. In Condon v Basi [1985] 1 WLR 866 (Condon) which concerned a football match in which the plaintiff suffered leg injuries as a result of a foul tackle by the defendant, Sir John Donaldson MR accepted the decision of the High Court of Australia in Rootes v Shelton [1968] A.L.R. 33 and preferred the approach of Kitto J who stated at p.37:
  22. "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."
  23. Sir John Donaldson MR observed that the standard of care is objective, "but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match."
  24. Smoldon v Whitworth [1996] EWCA Civ 1225; [1997] ELR 249 (Smoldon) is another authority involving injury at a rugby match, on this occasion following the collapse of a scrum, Lord Bingham CJ, giving the judgment of the court stated at page 256:
  25. "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…"
  26. In Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, the parties were professional jockeys in a two mile novice hurdle race. The court accepted and applied the principles set out in Condon and Smoldon. At para 23 Tuckey LJ rejected a possible contention that a claimant in a case of injury on the sports field has to establish recklessness. He stated that such an approach was specifically rejected in Smoldon and continued:
  27. "…. 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."

  28. At para 30, Judge LJ (as he then was) stated that in an action for damages by one participant in a sporting contest against another participant in the same game or event, the issue of negligence cannot be resolved in a vacuum. It is fact specific. At para 39 Judge LJ repeated the principle stated by Lord Bingham LJ in Smoldon (para 15 above).
  29. In Czernuszka v King [2023] EWHC 380 (KB) Martin Spencer J addressed the issue of the duty of care in a competitive sport in which the female claimant and the female defendant were playing in opposing rugby teams comprising novice and experienced players. The defendant tackled the claimant when the latter was bending down, was not in possession of the ball and was in a vulnerable position. As a result of the defendant's tackle, the claimant suffered serious spinal injury. Martin Spencer J considered and followed the relevant authorities and noted at para 60 that a requirement to establish recklessness was expressly rejected and disapproved by the Court of Appeal in Smoldon.
  30. The judge's conclusions

  31. At [27] – [33] the judge set out his conclusions as follows:
  32. "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

  33. In oral submissions Mr Block accepted that in a case such as this, a finding of recklessness properly made by a court would include a finding of negligence. He also accepted, following the authority of Smoldon, that in respect of an allegation of negligence, there is no legal requirement to establish recklessness. The essence of Mr Block's primary submission was that the judge, in finding that the appellant was reckless, had not addressed the issue of foreseeability. This was not a point taken when permission to appeal was sought. Mr Block contended that a determination of negligence required a finding that the appellant failed to exercise the degree of care that was reasonably necessary in all the circumstances so as to reasonably avoid the risk of foreseeable harm. It is the appellant's case that it was not reasonably foreseeable that the collision between the appellant and the respondent would result in serious injury.
  34. The appellant contends that this was a heavy collision, usual in a contact sport such as rugby, which of itself does not give rise to significant injury. What was required was a foreseeable risk of serious injury as opposed to the risk of knocking a player over. What distinguished this collision was the outcome. The appellant's submission appeared to be that the outcome of the collision had influenced the judge's view of what had occurred.
  35. In the alternative, Mr Block contended that the findings of fact should not give rise to a finding of a negligent breach of duty, the appropriate finding would have been one of momentary carelessness. This was a fast-moving physical game, the ball had been kicked into the air at kick off, the role of the appellant was to run to catch the ball or to tackle an opposing player who had caught the ball. There was no ulterior motive on the part of the appellant to take the respondent out. This was an error of judgment in the fast-moving game. A lack of care is permitted in fast-moving sports when it represents an error of judgment.
  36. Discussion and conclusion

  37. This was a claim brought upon the legal basis of a breach of the duty of care within the tort of negligence. Reckless was used to describe the defendant's actions in the pleaded Particulars of Claim. Recklessness does not provide a basis for a cause of action in tort. In this context, reckless is used as an adjective. In order to establish negligence, recklessness is not required: Smoldon and Caldwell. To describe a person in a sporting context as being reckless is to apply a higher and more stringent test. In such a context, a finding properly made that a player was reckless, will encompass a finding of negligence.
  38. The judge made detailed findings of fact based, in particular upon the video evidence assisted by the expert evidence of Mr Debney. No realistic challenge could be, or was made, to the judge's preference for this expert. Of note are the judge's findings at [30] namely:
  39. (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.

  40. The conclusions which the judge regarded as encapsulating the criticisms that could be made of the defendant's actions on the playing field and which were borne out by the evidence were as follows [32]:
  41. 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.

  42. At [33] the judge made no finding as to whether the collision was intentional but found that for the defendant to have run at full speed directly at the claimant and to have collided with him in the manner in which he did was reckless. Further 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 was upon this basis that the judge concluded that liability had been made out.
  43. Conclusion

  44. I do not accept the appellant's contention that the judge failed to address the issue of foreseeability. The judge's findings that the defendant ran directly at the claimant at full speed and in choosing to run so close to the claimant, the defendant was courting the risk that even a slight movement would result in a forcible contact with most of the kinetic energy being transferred to the claimant encapsulated the factual basis of foreseeability. On these facts, the risk was a significant one. Further, the risk which the defendant was courting was one of resultant forcible contact which could reasonably be foreseen to result in the claimant falling. Such a fall could of itself cause a fracture. A fracture is a serious injury. It follows that the risk which the defendant was 'courting' was one which could reasonably be foreseen to result in serious injury.
  45. In reaching his conclusion, and finding liability proved, the judge did not use the word "negligent" but this was the legal basis of the claim and it was upon the pleaded claim that liability was found. It would have been of assistance to the parties had the judge specifically addressed the issue of negligence.
  46. What the judge did was to apply the higher and more stringent test namely that the defendant was reckless. Such a finding is unnecessary in order to establish negligence. That said, such a finding properly made will encompass a finding of negligence and on the facts of this case, it did. In my view, there was cogent evidence before the judge which provided a sound basis for his findings of fact. This was not an error of judgment or momentary carelessness by the defendant. The findings of fact and the conclusions drawn from them by the judge provided the basis, in fact and in law, for a conclusion that in colliding with the claimant the defendant failed to exercise such a degree of care as was appropriate. Put shortly, the defendant was negligent. That being so, I am satisfied that the legal test for negligence in the context of this sporting claim is made out and the Respondent's Notice is upheld. It follows that the other issues raised on the appeal require no further determination. I would dismiss the appeal.
  47. Edis LJ:

  48. I agree.
  49. Bean LJ:

  50. I also agree.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010