England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CARDIFF DISTRICT REGISTRY

		To be handed down at The Royal Courts of Justice Strand, London, WC2A 2LL
		13th December 2002

Mr Justice Morland:

Judgment.
1. On the 17^th January 1998 the claimant, then aged 24 sustained a dislocation of the neck with resultant permanent incomplete tetraplegia. He is now wheel chair bound.

2. The injury occurred in the last moments of injury time when the scrums of Llanharan and Tondu 2^nd XV were engaging. The Claimant was the Llanharan hooker.

3. The claimant sues in negligence the first defendant, the referee, for whom the second defendants accepted vicarious liability, and the sixth and seventh defendants in a representative capacity respectively as the chairman and honorary secretary of the Llanharan Rugby Football Club. My task is to determine whether the claimant has established liability.

4. Despite the passage of years and the late date when many of the witness statements were taken there is little or no dispute as to the general picture of the events before and during the match

5. Llanharan against Tondu was a local derby. The first XV's were playing against each other on Tondu's ground. The second XV's were playing against each other at Llanharan's ground.

6. The claimant's brother had been selected as the hooker for Llanharan 2^nd XV but on the morning of the match he was called up to be a reserve front row substitute for Llanharan 1^st XV. In consequence the claimant who came to the ground expecting to be a reserve front row substitute found himself to be playing as the 2^nd XV hooker.

7. Despite the efforts of Derek Brown, the 2^nd XV coach, assisted by Kevin Jones, its captain, no specialist front row forwards could be found to be on the bench to act as replacements if needed in case a Llanharan front row forward was injured.

8. Both 2^nd XV's were wholly amateur although their first teams were professional or at least semi professional. The first teams were in the first division of Welsh Rugby Clubs but ranked below such premier division clubs as Cardiff, Maesteg and Bridgend etc.

9. There had been a lot of rain. The pitch was in a very bad condition. It was variously described as muddy, boggy or very boggy. It was clearly going to be a forwards game. So it proved. There were very many set scrums. The final score was 3 nil, a solitary penalty goal kicked by Llanharan. The game was hard fought but not dirty.

10. After about twenty minutes into the first half Tondu's tight-head prop was replaced by a substitute, Neil Bryant, a young but strong and trained front row forward. The replacement may have been tactical.

11. About ten minutes or so later Bryant's opposing Llanharan loose-head prop Gavin Marsh went off with a dislocated shoulder. Llanharan had a problem. They had no experienced or trained front row forward to take Marsh's place.

12. In the event Christopher Jones, who was the pack leader and had been playing as a flanker, took Marsh's place as loose-head prop. Jones was a regular 1^st XV player but had been off injured. He had returned after injury to play in this match. He had never been trained as a front row forward but had played some years earlier occasionally in the front row in low level games. He said that he was prepared to give it a go. He was a strong man and must have been moderately successful as a loose head prop in set scrums because there was no evidence that the ball ever came out against the head.

13. In injury time at the end of the second half Llanharan were leading three nil but Tondu were attacking strongly Llanharan's line. There were a number of set scrums at five metres. The Tondu pack was the stronger and was hoping for a pushover try that would give them the match.

14. It was to have been the final set scrum before no side. The front rows failed to engage properly. The first defendant blew his whistle. As the scrum parted, the claimant collapsed to the ground.

15. The crucial factual questions which I have to determine are how and why the two front rows failed to engage properly and whether the claimant has established on the balance of probabilities that Jones' lack of prop technique was a material cause of the failure to engage properly.

16. Assuming those factual questions are answered in the claimant's favour a number of legal issues and issues of mixed fact and law arise.

17. Does the referee of an adult rugby match owe to the players a duty to take reasonable care for their safety when carrying out his duties as referee?

18. Mr Leighton Williams Q.C. for the first and second defendants boldly submitted that I should hold that as a matter of policy no such duty exists.

19. He submitted that there was no U.K. decision that an amateur rugby referee owed a duty of care to players in an adult game of rugby. Smolden v. Whitworth [22002] PIQR 137 was distinguishable because there the existence of a duty of care in a colts game was conceded. He referred me to the threefold test enunciated in Caparo v. Dickman [1990] A.C. 605 of foreseeability, proximity and whether it is fair, just and reasonable that there should be such a duty and dicta of Saville L.J. in the Marc Rich case [1994] 3All E.R 686 at page 693A commenting upon Caparo that it was a "pragmatic question whether a duty should be imposed in any given case," approved by Lord Steyn [1996] A.C.211 at page 236A.

20. Mr Leighton Williams submitted that whether it was fair, just and reasonable to impose a duty upon a referee would depend upon a number of factors including the interests of rugby as a game and the overall public interest. He stressed that the match was an amateur game. He submitted that the imposition of a duty of care upon an amateur referee would discourage participation in rugby by amateur referees, officials and players.

21. I do not consider it logical to draw a distinction between amateur and professional rugby. In the professional game a front row forward is likely to be better trained, fitter and have more specialist techniques than his amateur counter part. In the professional game teams will have on the bench or in the team sufficient substitutes to replace a front row forward who is injured or sent off. I consider that the risk of very serious spinal and cervical injuries to front row forwards is more likely to occur in the amateur rather than the professional game albeit that such occurrences are extremely infrequent.

22. Mr Leighton Williams submitted that I should balance the interests of the injured player against the interests of the referee and the Welsh Rugby Union who it was submitted, had an interest in protecting their financial assets which they can only protect by expensive insurance when, it is said, rugby is very under funded. It is open to a player to protect his own interests by insurance cover. The amateur player plays rugby for enjoyment despite knowing the risks involved.

23. In my judgment when rugby is funded not only by gate receipts but also by lucrative television contracts I can see no reason why the Welsh Rugby Union should not insure itself and its referees against claims and the risk of a finding of a breach of duty of care by a referee where "the threshold of liability is a high one which will not easily be crossed". Amateur rugby players will be young men mostly with very limited income. Insurance cover for referees would be a cost spread across the whole game.

24. Mr Leighton Williams rightly submitted that the referee does not create the risk of injury but in my judgment is so far as he can stop that risk becoming a reality by appropriate application of the laws it is not unreasonable to expect him to do so. I accept that rapport between referee and players is crucial to a good game of rugby but I do not see why that rapport will be lessened because both referee and players know that the referee owes a duty of care for the safety of the players; a duty to be performed by appropriate and sensible application of the laws of rugby in the context of the ebb and flow of a hard fought physical contest.

25. Mr Leighton Williams accepted that the most dangerous place in a game of rugby is the front row of the scrum and this is recognised in the laws of the game.

26. The Welsh Rugby Union published the 1997 edition of the Laws of the Game of Rugby Football with instructions and notes on the laws as framed by the International Rugby Football Board. Law 3 covers the number of players and the replacement and substitution of players. Law 3 (5) reads:-

"Any team must include suitably trained/experienced players as follows

(e) if a team nominates 16.17 or 18 players it must have four players who can play in front row positions."

Law 3(9) The replacement of an injured player should be made only when the ball is dead and with the permission of the referee."

Law 3(12) Special Circumstances

In the event of a front row forward being ordered off or injured or both, the referee, in the interests of safety, will confer with the captain of his team to determine whether another player is suitably trained/experienced to take his position; if not the captain shall nominate one other forward to leave the playing area and the referee will permit a substitute front row forward to replace him. This may take place immediately or after another player has been tried in the position.

When there is no other front row forward available due to a sequence of players ordered off or injured or both then the game will continue with non-contestable scrummages which are the same as normal scrummages except that:

there is no contest for the ball

the team putting in the ball must win it

neither team is permitted to push

the formation of both teams must be 3/4/1."

27. In my judgment the laws of rugby should not be interpreted legalistically in a manner that might be appropriate to regulations under the Factories Acts but should be construed purposively in the context of the game of rugby. In my judgment these parts of law 3 have a primary purpose, Safety…..that is lessening the risk of injury to front row forwards. Although law 3(12) specifically speaks of the event of a front row forward being ordered off, in my judgment it would be contrary to the spirit of law 3 as a whole if it did not apply in the event of a front row forward being injured.

"Law 6A(1) There shall be a referee for every match. He shall be appointed by or under the authority of the Union or, in case no such authorised referee has been appointed, a referee may be mutually agreed upon between the teams or, failing such agreement, he shall be appointed by the home team.

(3)…….the Laws of the Game…..The referee shall keep the time and the score and he must in every match apply fairly the laws of the game without any variation or omission.

Note (iii) the referee has power to declare no side before time has expired if in his opinion, the full time cannot for any reason cannot be played or continuance of play would be dangerous."

"Law 6A(4) He must not give any instruction or advice to either team prior to the match. During the match he must not consult with anyone except only (a) either or both touch judges on a point of fact relevant to their duties or on matters relating to law 26(3); or (b) in regard to time (5) during a match the referee is the sole judge of fact and law. All his decisions are binding on the players."

28. Law 8 covers advantage

"The referee shall not whistle for any infringement during play which is followed by an advantage gained by the non-offending team. An advantage must be either territorial or such possession of the ball as constitutes an obvious tactical advantage. A mere opportunity to gain an advantage is not sufficient.

Notes (i)……..The referee is giving a wide discretion as to what constitutes an advantage and is not limited to a territorial advantage the referee is the sole judge of whether an advantage has been gained."

29. Law 20(3) reads:-

"It is dangerous play for a front row to form down some distance from its opponent and rush against them."

"Note (v)……..The referee should not call the front rows to engage until the ball is in the hands of the player putting in the ball and is available to be put in immediately. This call is not a command but an indication that the front rows may engage when ready."

30. Law 26 covers foul play, it reads:-

"Foul play is any action by a player which is contrary to the letter and spirit of the game and includes obstruction, unfair play, mis-conduct, dangerous play, unsporting behaviour, retaliation and repeated infringements."

31. The English Rugby Football Union published in 1997 a referee's manual. The first defendant had a copy of this manual but he was uncertain whether he had read it before the match in which the claimant was injured. I quote from a passage in the manual headed "The Tools of the Trade":-

"There are characteristics which the referee needs to have if he is to succeed:

Firstly, he needs:

to have empathy with the game. It is difficult, but not impossible, to referee a rugby match if you don't have some intrinsic understanding of, and feeling for, the game.

Secondly, the successful referee will be a:

good communicator. It is important to understand that the rugby referee, as distinct from many other sports talks and signals almost constantly during a game. The players need the referee to tell them what he expects of them and what he is looking for in this respect the referee acts in a preventive capacity, advising players on what course of action to take so that they do not infringe.

Thirdly:

the referee must be fit.

These three elements make up the base requirements for a rugby referee, and they could all be listed under the heading: management skills. Managing a game is not simply blowing the whistle when an infringement occurs and keeping the score and time. Game management encourages empathy, communication, and fitness, as well as:

knowledge of the Laws. You have to know the Laws: there are 28, some more important than others, but they all need to be learnt and, more critically, understood. What are the motivations for each Law? What are they trying to achieve? How they should be interpreted? "

32. The manual sets out basic principles

"As an over-riding priority, the referee has to abide by three fundamental principles: safety, equity, and laws.

"SAFETY - Rugby is a physically demanding sport. Quite apart from the obvious contact elements, there is now a much greater demand on fitness levels as the laws have evolved to increase the speed and openness of the game. This combination may lead to situations where the referee will have to intervene to ensure the safety of the players involved.

It is therefore the referee's primary responsibility to ensure the safety of all players at all times. The players' safety takes precedence over everything else:

if it looks dangerous stop it. The good referee never compromises safety, and will be constantly alert to potential dangers. Body positions in the tackle, scrummage, lineouts, ruck and maul and use the whistle to prevent injury. A referee can always justify a decision to stop the progress of the game on the grounds of safety.

It cannot be stressed too often that the primary role of the referee is to protect the players. You cannot always protect them from themselves, if they are determined to place themselves in danger, but you must be there to make sure that they are protected from the consequences of their actions, however injudicious they may have been. Foul and dangerous play have no place in the game and as the R.F.U. says, the laws provide all the necessary sanctions - as well as preventive measures - to allow a fair physical contest."

33. In a section headed "Final Preparation for the Referee" this is said:-

"Once you are changed, check again on the two teams to see if they are going to have full sides; you should be especially concerned about the front rows, as you will need to play uncontested scrummages if either side cannot raise a qualified front row. "

34. On the 17^th December 1996 the Court of Appeal in Smolden v. Whitworth and Nolan [1997] P.I.Q.R. Page 133 upheld the Judge's finding that the defendant referee was in breach of his duty of care when a 17 year old hooker broke his neck in a collapsed scrum.

35. Although in Smolden's case it was accepted by the defendant referee that he owed a duty of care to the plaintiff hooker the judgment of the then Lord Chief Justice Lord Bingham delivering the judgment of the Court of Appeal has observations of general application which are pertinent to this case. He said at page 134:-

"There appears to be no previous case in which a rugby football player has sued a referee in negligence. The case is one of obvious importance to the plaintiff whose capacity for active and independent life has been blighted in the flower of his youth; it is also of concern to many who fear the judgment for the plaintiff will emasculate and enmesh in unwelcome legal toils a game which gives pleasure to millions. But we cannot resolve the issues argued before us on the basis of sympathy or personal predilection. We must instead endeavour to apply established legal principles, so far as applicable in this novel field in order to draw on "that public wisdom by which the deficiencies of private understanding are to be supplied".

"It is a tough highly physical game probably more than any other game widely played in this country. It is not a game for the timid or the fragile. Anyone participating in serious competitive games of rugby football must expect to receive his or her fair share of knocks, bruises, strains, abrasions and minor bodily injuries. "

36. The Lord Chief Justice quoted from Law 20:-

"Law 20 governed the scrummage and contained the following provisions relevant for present purposes (2) before commencing engagement each front row must be in a crouched position with heads and shoulders no lower than their hips and so they are no more than one arms length from their opponents shoulders

(b) while the scrummage is taking place the shoulders of each player must not be lower than his hips. To this law there was a note which said (viii) in the event of a scrummage collapsing the referee should whistle immediately so the players do not continue to push.

Law 20(14) and 6(16) provided in part (14) players in the front rows must not at any time during scrummage: (b) wilfully adopt any position or wilfully take any action by twisting or lowering the body or pulling on an opponents dress which is likely to cause the scrummage to collapse.

(16) a player must not wilfully collapse the scrummage or wilfully fall or kneel in the scrummage.

A note added (xvii) referees must be strict in penalising for the wilful collapsing of the scrummage."

37. The Lord Chief Justice referred to directives issued by the International Board. In particular one issued in March 1981 which was headed "Dragging Down by Props" in which it was said:-

"Meanwhile member unions are to direct referees in the interests of safety they must take strict measures to penalise the practices referred to above or any other action which is likely to cause the scrummage to collapse"

38. In that directive the International Board referred to an attendant risk of collapse of the front row with the possibility of serious injury.

39. The Lord Chief Justice referred to the scrum engagement sequence and quoted from an International Board Directive of March 1991 which read:-

"Scrum engagement sequence. The Board views with concern the lack of observance of the phase sequence of engagement within law 20(2). It is vitally important to reduce the impact force at the scrum engagement. Therefore the following engagement sequence is to be strictly observed: Crouch-Touch-Pause-Engage. The pause then is to give players time to check visually that this safe alignment has been made before they engage.

In the event of the scrummage collapsing the referee in the interests of safety must whistle immediately so that the players do not continue to push and put further pressure into an unstable situation. The importance of these directives as safety factors within the laws cannot be overstated and should be implemented at all levels of the game. "

40. At page 139 Lord Bingham said:-

"The second defendant accepted that he owed a duty of care to the plaintiff, so that there was no issue whether any duty arose at all or whether any such duty was owed to the plaintiff. The issue of policy (or of what is just and reasonable) which has to be received where these questions arise did not here fall for decision. The only question was what duty was owed? The second defendant feared that if the test proposed by the plaintiff and upheld by the judge were held to be correct, the threshold of liability would be too low and those in the position of the second defendant would be too vulnerable to suits by injured players. We do not accept this fear as well founded. 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."

41. At Page 140 the Lord Chief Justice said:-

"There can be no doubt the scrummaging rules set out above were designed to minimize the risk of spinal injuries caused in collapsing scrums, this being a risk of which those managing or coaching rugby teams or refereeing or playing in matches were by October 1991 well aware."

42. In my judgment as a matter of policy it is just and reasonable that the law should impose upon an amateur referee of an amateur rugby match a duty of care towards the safety of the players. Such a duty would be breached if the claimant established that the referee failed to take reasonable care for the safety of the players by sensible and appropriate application of the laws of rugby having regard to the context and circumstances of the game. I consider that the imposition of such a duty would be consistent with the spirit of the laws of rugby. I do not consider that the enjoyment of the game by players or spectators would be lessened. Rugby is an important part of Welsh culture and I am very mindful of its future development which in my judgment will in no way be harmed by the imposition of such a duty.

43. In determining how the claimant came to be injured and whether Jones's lack of technical skill as a prop was a material cause of the failure of the two packs to engage properly I am faced with the difficulty of the absence of clear recollection of events by the witnesses in a game which was played 4½ years ago. This difficulty is compounded by the fact that most witnesses were not asked to give statements until within the last couple of years or so. The exception is the first defendant, the referee Mr David Evans, whom I found to be an impressive and accurate witness. In reaching that conclusion I had full regard to the facts that the first defendant owed a duty of care towards the claimant and would have realised from the time of the serious accident that he might be called to account.

44. The first defendant is a solicitor employed by the National Union of Teachers. Since 1989 he has specialised in personal injury claims and is on the Law Society personal injury panel. At the time of the claimant's obviously serious injury he anticipated that he would have to make a report to the Welsh Rugby Union.

45. Immediately after the match in his changing room the first defendant wrote out an aide-memoire in manuscript (trial bundle 1 p 143-151).

46. Because it is the earliest and in my judgment the most accurate account of what happened I quote it in full:-

The first Defendants Match Pad Entry

"17.1.98

Llanharan II Tondu II KO

0 0

p

3/0

In approx the 30 minute of the game Llanharan indicated to me that their prop was injured and could not continue. They also indicated to me that they did not have a prop forward replacement. In discussion I explained to them that the decision was theirs. The prop replacement need not be on the bench but could be on the field. It was their decision. I also explained that as far as I was aware if they requested non-contestable scrums as far as league points were concerned they could not be awarded even if they win.

Llanharan opted to try their flanker at prop. He felt comfortable with it. I also explained to Tondu that we should have some sense as regards the scrum. I did not want them to try to put him under undue pressure but appreciated that it was still a contest.

Thereafter there were some difficulties with the scrum.

Initially it started to wheel. This almost became repetitive and I instructed both forwards that if it wheeled so far again I would consider it to be a deliberate act. At one scrum near the Llanharan line approx 10 minutes into the second half this occurred. I penalised Tondu. There were no further problems with the scrum wheeling. The next problem was with the scrum collapsing. This occurred a few times with the original props. The conditions underfoot were extremely slippery and contributed to this factor. Approx 20 minutes into the second half I instructed both forwards that if the scrum went down again however I would penalise. I gave one penalty for this against Llanharan in Tondu's half approx on the 22m.

From there on the scrum did stay up and I repeatedly called for it to stay up "keep it up" and it did. There was some unsteadiness in the final minutes of injury time. Tondu were pressing on the line. There was a series of scrums on the line. I was checking my watch & calculated that there was time for one last scrum (4^th minute of inj).

As the players engaged the Llanharan front row appeared a little late to get down. I sought to reset but the hooker collapsed with what looked to be a serious injury."

47. The abbreviations at the beginning signify that Llanharan chose ends and Tondu kicked off. The score nil all, the first defendant entered at half time on the pitch. P 3/0 showed the final score, a penalty goal to Llanharan.

48. On Tuesday the 20^th January 1998 the first defendant dictated his Referee's Report (trial bundle 1 pages 151a-g) as he said in his postscript:-

"with assistance of notes made in match notepad in changing room immediately following the game and further subsequent notes made on reflection of events in days immediately thereafter"

49. The first defendant said in evidence that there was nothing in his Referee's Report that he wanted to change or qualify.

50. He described in his report the lead-up to the claimant's accident in these words:-

"As it was a league match, Tondu went on the offensive, keen to score and secure league points. As the game drifted into injury time, I awarded a penalty to Tondu on the right hand side of the pitch as they attacked it approximately 6 metres from the line. The penalty was given for a Llanharan tackler killing the ball on the floor. Tondu opted for a scrummage and their Number 8 broke blind. He was held up over the line and did not ground the ball. Accordingly, I awarded a scrum 5 metres out to Tondu. As the scrum set, the Tondu loosehead and Llanharan tighthead, wavered and both their hands went to the floor. I whistled immediately and called for the scrum to be re-set. As usual, I stood with my arm between the front rows until they were ready. As they packed down, the front rows did not engage properly with a Tondu tighthead upright. I whistled once more to re-engage. There was a comment from Llanharan that Tondu had refused to pack down. I did not however consider this to be true. After all, they were on the offensive and had a very advantageous position in the dying minutes of the game.

Again I held the packs apart until they were ready. Unfortunately, the scrum again did not go down properly and I whistled immediately. As the front row separated, the Llanharan hooker sank to the floor between his 2 props."

51. Later in the report he described how Christopher Jones became the substitute loosehead prop for Llanharan:-

"After approximately 32 minutes, the Llanharan loosehead indicated an injury to his shoulder, which I believe was caused in a tackle. Llanharan players stated to me that they did not have a prop on their replacement bench. Accordingly, I conferred with their captain and forwards as to whether another player was suitably trained or experienced to take his position or be tried in that position. In that discussion, I also explained that if they desired they could elect for non-contestable scrummages. I was asked whether the election of non-contestable scrummages would affect the award of league points. I confirmed that to the best of my knowledge league rules stated that points would not be awarded to a side seeking non-contestable scrummages in the event of them winning. Llanharan then opted to try their number 6 in the prop forward position. Before the first scrummage with that player in the front row however, I called aside the Tondu tighthead and their captain. I informed them that I expected common sense to prevail. Although the scrummages remained a contest, I did not expect them to seek to put undue pressure on the player being tried in that position. The game continued. I ensured that I kept special watch on the Llanharan loosehead side. On occasions I stood at his side of the scrummage, even when the put-in was on the other side. I felt that by doing so, the players were aware of my presence and the contest could continue safely."

52. Also in his report the first defendant describes various scrummaging infringements and problems by the Llanharan tighthead prop for taking the scrum below shoulder level, for boring in on the opposing hooker, problems of wheeling and collapsing at the put-in.

53. Dealing with collapsing in the second half and before mentioning the two consecutive collapses he wrote this significant sentence:-

"By this stage, forwards were becoming tired and Llanharan obviously had a makeshift front row"

54. The first defendant had played rugby regularly until he retired in April 1994 at the age of thirty-three. He was always a forward but only in an emergency as a prop. He had been an established member of Porthcawl's 1^st XV squad. He had also played for London Welsh Under 21 and Blackheath 2^nd XV.

55. In June 1994 he went on an intensive three day Welsh Rugby Union course and refereed his first match at youth level in September 1994. He has refereed ever since. In January 1998 he was on the Welsh Districts Rugby Union list. He was subject to frequent observation reports including in particular the scrummage (see trial bundle 1 pages 120-125). The Reports are generally complimentary or very complimentary. At the commencement of the 1999 season he was promoted to the Welsh Rugby Union list from District level.

56. The first defendant was clearly a referee who considered that he owed a duty of care to the players. On the 22^nd March 1997 he called off a youth match because the goal posts had no protective pads. He was criticised by a Welsh Rugby Union official who described the decision as "wrong". As reported in a Welsh newspaper the first defendant's response was:-

"There may be nothing in rugby law requiring safety padding, but at common law there is clearly a duty of care to ensure players are not unnecessarily exposed to risk of harm."

57. In his oral evidence the first defendant said that before the match be addressed both front rows in the changing rooms saying "I want to see your shoulders up. I want to see you tight. I want to see you square on. My arm will go out in front of you. I do not expect any of you to move forward until my arm moves away. I say "Crouch", there will be a pause, when I am satisfied I shall call "Engage" when simultaneously I shall move my arm, then you can go down". I accept his evidence that at set scrums throughout the Llanharan/Tondu match he followed this practice although on occasion he would have used the word "Down" instead of engage.

58. In my judgment it is not made out that the first defendant was negligent in his control of set scrums or in his general control of the game.

59. The crucial first question is whether he was in breach of his duty of care in allowing the match to proceed with set scrums with Christopher Jones as the substitute loosehead prop.

60. The first defendant's oral evidence was entirely consistent with his match pad entry and his referee's report. He added in oral evidence that he believed that the laws of rugby allowed someone to be tried out as a prop. Trying out people in the front row still goes on and it has not been suggested that it should be absolutely prohibited. He personally thought that he had to have in mind the safety of the players. He recognised that special skills were required of a front row player but he did not agree that it was for the referee to ensure that a club had complied with the laws. He did not personally know the Llanharan captain or Christopher Jones but had concluded watching Jones playing flanker in the first half hour or so of the game that he was the leading player in the Llanharan pack. No alarm bell had sounded when Jones said "I'll have a go". When he became the substitute loosehead prop, he kept an eye on him. He said that Jones appeared comfortable and capable playing as prop especially at first. He was the right size and shape.

61. The oral evidence from other witnesses was consistent with the first defendant's account of what happened when Gavin Marsh went off with his dislocated shoulder.

62. Christopher Jones whose recollection was patchy was a regular 1^st XV back row forward. He had been off injured. He was playing in the 2^nd XV match to get some fitness. He had had no training in front row play but some years back had played in the front row occasionally at a low level. He volunteered to give it a go and see how he got on with it. He said to start with it was not too bad.

63. Derek Brown, the Llanharan forward coach, said that when Gavin Marsh came off he went onto the field. The referee offered passive scrums. The players didn't want to forfeit points. Kevin Jones, the Llanharan captain, chatted with Christopher Jones who said that he would go up to the front as he had been there before. He seemed to be doing the job of prop O.K. but he was not perfect.

64. Brown came on the field at half time. And said to Christopher Jones " How's things going are you O.K.? to which Jones replied "I'm struggling a little bit but I will be all right." Brown said that as far as he was concerned he was doing alright.

65. As I find, the evidence is clear that the first defendant effectively abdicated his responsibility leaving it to Llanharan to decide whether to play non-contested scrums. He made no enquiries of Christopher Jones as to whether he was suitably trained and experienced. He clearly was not. Front row players are particularly vulnerable to injury and potentially serious injury if one of their number lacks the requisite technique and is not suitably trained and experienced. In my judgment the first defendant was in breach of his duty to take reasonable care for the safety of the front row forwards in failing to order non-contested scrums. It was a hard fought forwards match played on a muddy pitch increasing the risk of injury in a set scrum if a front row forward lacked technique. Also in my judgment the coach and captain of Llanharan were wrong in allowing the desire not to forfeit points to override considerations of safety. The decision not to have non-contested scrums was not taken in the heat of the moment during fast moving play. It was taken when play had stopped and after discussion but without any interrogation of Christopher Jones as to his training and experience as a prop by the first defendant.

66. Has the claimant established on the balance of probabilities that the first defendant's breach of duty was a material cause of his accident? In my judgment he has. Although the increasing tiredness of the forwards and the worsening condition of the pitch played their part in this hard fought match, I am satisfied that Christopher Jones's lack of technique and experience as a prop was a significant contributory cause of the unsatisfactory nature of set scrummages, not only of collapses which were not a cause of the claimants accident but also mistimed engagement which was.

67. There is ample evidence which I accept that, after Christopher Jones became the loosehead prop, set scrummaging deteriorated although not to the extent that the Tondu were overwhelming Llanharan in set pieces or that the ball was coming out against the head.

68. Gareth Davis, the Tondu hooker, said that there were more collapsing scrums after Christopher Jones took over as prop. He said "The person who came into the prop position was not as good. We could push their prop. It was easy to disrupt their ball". "The scrummaging was farcical. They kept collapsing". "He could not hold the scrum". "The accident took place as we were engaging."

69. Neil Bryant, the Tondu tight-head opposing Christopher Jones, said "For me Christopher Jones was weaker straight away as a scrummager. I was able to twist him. He did not get any better. The scrum tended to wheel to take him down" Describing the last few seconds of play he said "All I remember is a lot of scrums. The referee blew up. The scrum was reset. We didn't get down properly. He blew up again. We went down again and Vowles had his accident". "The Tondu front row was packed down. The object was a pushover try but the opposing front row was not ready for us". But he said also that engagement worked quite well during the match.

70. Christopher Jones himself said "to start with I got on O.K. but obviously the ground cut up and we were collapsing more. It progressively got worse to the end of the game. I would say there were twice as many collapsed scrums or bad engagements as normal. Two or three times every scrum. It was worse towards the end".

71. However, I do not accept Christopher Jones's description of the accident that the Llanharan front row hadn't crouched down and that the claimant's arms were still over his head when Tondu lunged forward. I find that both packs had crouched down and the accident occurred through mis-timing on engagement. As Derek Brown, the Llanharan coach, explained collapsed scrums can be caused by poor engagement. This could account for the increased number of collapses after Christopher Jones took over as loose-head.

72. The claimant said that after Christopher Jones became loose head it affected the balance of the scrum. "Every scrum more or less collapsed, perhaps two or three times." "He did not have the build. He was a lot thinner than a usual prop. His timing was out of sync. He was too late in going down. He did not bind so tightly. I could not bind as tightly on him".

73. He described how the accident occurred when he hit his head on the opposite hooker's shoulder. "I was pushed into engagement whether I liked it or not. I could have stood up but I was in a crouch position, bent up already. It was safer for me to go down, I think. I was being pulled down by the props".

74. Although I am satisfied that the first defendant's refereeing during play was up to standard, in my judgment he was in breach of duty in leaving Llanharan to decide whether scrums were non-contested and thus Christopher Jones became loose head in set scrums. Jones's lack of technique, training and experience as a prop was, I am satisfied, a significant cause of the mis timing on engagement and the claimant's accident. Even if the first defendant may have been entitled to give Christopher Jones a trial as loose head prop as law 3(12) seems to envisage, in my judgment he should have kept such a trial under constant review and was negligent in not ordering non-contested scrums long before injury time having regard to the history of repeated and increasingly numerous bad set scrummages.

75. I am not satisfied that the first defendant failed to enforce the crouch – pause – engage sequence or that Mark Thomas, the Tondu coach, or anyone else told him that the scrums were dangerous. Nor do I think that he can validly be criticised for not in the last minute or so of the match awarding a penalty or blowing no side before the accident occurred.

76. I should add that I heard expert evidence from two referees, Mr Edmondson for the claimant and Mr Doyle, the distinguished Irish international referee, for the defendants. Although I found their evidence interesting, it has not helped me in reaching any conclusions.

77. Therefore the claimant succeeds on liability against the first defendant and vicariously against the second defendant.

78. Does he also succeed against the sixth and seventh defendants?

79. The answer to that question must be given in its factual context.

80. It can be said against Derek Brown, the Llanharan 2^nd XV forwards coach, Kevin Jones, the team captain and Christopher Jones the pack leader, that they in their personal capacities may have been in breach of any duty of care that they may have owed the claimant, as hooker, when deciding to decline the option of non-contested scrums. They have not been sued. Their decision was an ad hoc decision made in the course of a match.

81. The sixth and seventh defendants are unpaid office holders of Llanharan Rugby Football Club, respectively the chairman and honorary secretary of the club. They are sued on their own behalf and on behalf of all other members (except the claimant) of the club.

82. There is no evidence before me that either in a personal capacity or as officers of the club the sixth or seventh defendants had under the rules of the club or otherwise assumed any duty of care or represented that they owed any duty of care to club members while playing in matches. There is nothing in the club rules which suggest that the club through its members assumed or represented any such duty to individual members in such circumstances.

83. It is pleaded in the Re-Amended Particulars of Claim:-

"The pleaded accident was caused by or contributed to by the negligence of the Club

Particulars

(1) Failing to ensure that there was a replacement prop forward available…….. (Law 3(5)(e)).

(2) Causing or permitting Chris Jones to play as replacement prop forward when that player was not competent and/or suitably trained and/or experienced to play in that position…. (Law 3(12))

(3) Whether by its playing captain Kevin Robert Jones or its player/coach Derek Thomas Brown or otherwise.

(a) Failing to elect to continue the match with non-contestable scrummaging when offered that option by the first defendant.

(b) Declining the first defendant's offer to continue the match with non-contestable scrummaging without making any or any adequate investigation as to whether or not the proposed replacement prop forward Chris Jones was competent and/or suitably trained and/or experienced to play safely in that position for the rest of the match.

(c) Giving undue and/or excessive weight when considering the first defendant's offer to continue the match with non-contestable scrummaging to the fact that the team so electing would forfeit the league points available from the match.

(4) By its player/coach coach Derek Thomas Brown or Chris Jones or otherwise, failing fully or at all to inform its playing captain Kevin Robert Jones of the nature and/or extent of Chris Jones' competence and/or training and/or experience as a prop forward before or at the time of the election to continue the match with non-contestable scrummaging. "

84. In my judgment the claim against the sixth and seventh defendants, who had no part in the decision to decline the option of non-contested scrums, must fail in law.

85. I accept the propositions of law advanced by Mr Wyn Williams Q.C. for the sixth and seventh defendants as a correct statement of the law derived from the judgments of the Court of Appeal in Shore v. Ministry of Works [1950] 2 All.E.R. 228 Robertson v. Ridley [1989] 1.W.L.R. 872, Caldwell v. Maguire and Fitzgerald [2002] P.I.Q.R. p45, Smolden v. Whitworth and Nolan [1997] P.I.Q.R. p133 and of the High Court of Australia in Rootes v. Shelton [1968] A.L.R. 33. I was also referred to the Court of Appeal decision in Owen against Northampton Borough Council Local Government Review January 11th 1992 page 23 were Lord Justice Ralph Gibson said at page 29:-

"It seems to me that it is open to the court to find that a duty of care existed where a club officer or a member of the committee takes upon himself some task which he is to perform for other members of the club in course of which he acquires actual knowledge of circumstances which he knows gives rise to risk of injury to club members acting as he know they will or maybe expected to act if not told of the cause of danger. I do not doubt that the nature of the relation between the members of a club may often be such that it will be impossible to find that one member has undertaken any responsibility to inspect, or to inquire, or to consider whether circumstances will or may give rise to a risk of injury. But there maybe circumstances in which a member acquires knowledge both of an actual danger and of the fact, that if a warning is not given, the members upon whose behalf he is taken to perform a task will be exposed to the risk of injury. If such circumstances and it is not necessary to inquire in which other circumstances it is open to the court to find a duty of care existed and was broken."

 

86. The propositions were:-

"(i) At common law an unincorporated members club or its officers or committee members owe no duty to individual members except as provided by the Rules of the organisation.

(ii) An individual member of a members club may assume a duty of care to another member or be found to owe such a duty according to ordinary principles of law and in those circumstances the fact of common membership of the association will not confer immunity from liability upon the member sued.

(iii) Whether or not such a duty is held to exist will depend upon all the circumstances of the case

(iv) Each participant in a game of Rugby owes a duty to each other player to exercise in the course of the game all care that is objectively reasonable in the circumstances to avoid injury occurring to another player.

(v) The laws of Rugby are neither definitive of the existence of a duty nor of its extent. Breach of a law does not necessarily mean a breach of a duty but is part of the relevant circumstances to be taken into consideration in deciding whether a duty exists and if so to what extent.

(vi) In judging whether a breach of duty occurred the threshold for liability is inevitably high. "

87. In my judgment even if Derek Brown, Kevin Jones and Christopher Jones owed theoretically a duty of care to the claimant, it was as participants in the game (as arguably Brown, the coach was) and not as fellow club members. They may have been wrong to decline the option of non-contested scrummages thus overriding considerations of safety but I not consider that that decision would have crossed the high threshold requisite for liability. It was for the first defendant as referee having regard to the interests of safety to determine whether scrums should be non-contested.