Two females playing rugby

On 23 February 2023, the English High Court ruled that amateur rugby player Natasha King had been negligent when she executed a “tackle” on opponent Dani Czernuszka “without any regard for the well-being or safety of the [latter] and intent only on exacting revenge” during a women’s developmental match.[1]  As such, Ms King (the Defendant) was deemed liable for the life-changing injuries that Ms Czernuszka (the Claimant) sustained in October 2017 – a T11/12 fracture, resulting in paraplegia. Liability and quantum were bifurcated so there will now be an assessment of the applicable damages, which could be considerable.

Aside from the impact on the parties involved, this case raises legal issues regarding expert evidence, the relevant standard of care owed between sportspersons, premeditation, and distinguishing between a dangerous act and one that is legally negligent (a distinction that counsel for the Claimant asserted is “paper thin[2]).  There is also a wider question: should this finding of on-field negligence be a cause of concern (or, conversely, provide some comfort) for sports participants in England and Wales?

The facts

Whilst the “injuring tackle” happened towards the end of a match on 8 October 2017, the Defendant (of Bracknell Ladies) reportedly had “history” with the Claimant’s team (The Sirens).  Witness evidence alleged that, in a prior match between the sides on 8 May 2017, the Defendant punched and injured opposition players (including breaking a Sirens player’s arm), as well as engaging in verbally aggressive and intimidating behaviour.

This abrasive approach continued in the match on 8 October 2017, which (crucially) was video recorded in full.  The Defendant accepted she embarked in “trash talk with a lot of swearing[3] and, prior to the injuring tackle, there were several incidents that stood out to the Judge when reviewing the footage.  One of those, where the Defendant forcibly pushed a Sirens player to the ground off the ball, was considered by the Judge to be “a deliberate, gratuitous action by the Defendant… contrary to both the laws and Spirit of the game”.[4] 

A few minutes prior to the injuring tackle, the Defendant had winded herself when tackling the Claimant, despite the former being the considerably larger player.  According to Claimant (and the Judge), this elicited a desire for revenge. A few minutes later, when the Claimant was in a vulnerable position, bending down to play the ball at the base of a ruck, the Defendant “put her whole bodyweight forward and down on the Claimant’s back[5], injuring the Claimant’s spinal cord, before the Defendant walked away showing “no concern” whatsoever.[6]  Photos (i.e. stills from the video) are included in the judgment itself.

Expert Evidence

A notable aspect of the case was the expert evidence provided by two former international referees, Mr Ed Morrison (on behalf of the Claimant) and Mr Tony Spreadbury (on behalf of the Defendant).  Whilst they had both officiated at the pinnacle of the professional game, it was their analysis of the video footage of an amateur match (including the incidents involving the Defendant that preceded the injuring tackle) that played a critical role in the Judge reaching his factual findings. 

The judgment is notable in that it contains extensive analysis regarding the offside line at the tackle/ruck and the protection of players in a scrum-half role. Indeed, the expert evidence primarily concerned the following issues:

  • Whether the Defendant was offside within the laws of rugby;
  • Whether the Claimant had possession of the ball within the laws of rugby;
  • Whether, therefore, it was legitimate for the Defendant to tackle the Claimant at all; and
  • How the Defendant executed her tackle.

Mr Spreadbury had initially stated in his expert report that the Defendant “was not off-side, nor did she commit any act of foul or dangerous play in accordance with the Laws of the Game”. Whilst Mr Morrison accepted that the Defendant was onside (as the ruck was over), he said he had “never witnesses such a reckless incident” during “almost 60 years as a [rugby] player, coach, referee or administrator”.[7]  During oral evidence, Mr Spreadbury moved “closer to position of Mr Morrison[8]; he acknowledged that the Claimant was not in possession of the ball and “conceded the whole of the Claimant’s case [in relation to the mechanics of the tackle]… in a way which represented a complete volte face from the position he had taken in his report”.[9]

By moving from “his somewhat extreme position” (as the Judge called it), Mr Spreadbury undermined two of the essential struts of Ms King’s Defence – in circumstances where the Defendant had pleaded that she had not done anything wrong (as opposed to contending it has been an error of judgment).

Standard of Care

In a nutshell, the core legal principles under consideration were:

  • What is the standard of care owed to a fellow player in an amateur rugby match; and
  • On this occasion, did the Defendant’s actions in executing the tackle fall below that standard of care?

The Parties cited different authorities in setting out the applicable standard of care that should be applied by the Court to the facts in question. 

  1. The Claimant asserted that the Court should adopt the test derived from Condon v Basi [1985] 1 WLR 866, namely that a Defendant has a duty “to exercise such degree of care as was appropriate in all the circumstances“.  That case concerned a tackle in amateur football match, whereby the defendant had broken the claimant’s leg.
  • By contrast, the Defendant principally relied on the Court of Appeal case of Blake v Galloway [2004] 1 WLR 2844, inviting the Court to consider a higher and more stringent test – namely that the injuring tackle should only be actionable if it “amounts to recklessness or a very high degree of carelessness”.  That case related to horseplay between 15-year-old boys, who were throwing twigs and bark at each other. 

Judgment and Reasoning

The Judge held that the Defendant’s actions had failed to exercise such degree of care as was appropriate in all the circumstances, applying/endorsing the Condon test. He deemed that “the Defendant did exactly what she set out to do, and whether or not the Claimant had possession of the ball was irrelevant so far as she was concerned: at that moment she was not attempting to play within the Laws of the game, but to exact retribution on the Claimant” .[10]  In making his determination, the Judge noted the level of the game, the fact the Defendant could have modified her action towards a player in a vulnerable position, and that she effectively “closed her eyes to the [clear and obvious] risk [of injury]”.[11]

Although the Judge agreed with Mr Morrison’s analysis that the injuring tackle was a “reckless and dangerous act and fell below an acceptable standard of fair play[12], he considered that this was not a prerequisite for establishing on-field liability.  Indeed, the Judge did “not consider the Court of Appeal in Blake v Galloway did, or intended to, lay down any rule or principle that, in the sporting context, the conduct complained of must be reckless or demonstrate a very high degree of carelessness[13], instead citing Smoldon v Whitworth & Nolan (1997) ELR 249 (a case where a rugby player’s neck was broken during a collapsed scrum) as example of where the Court of Appeal expressly rejected the need to establish recklessness.

Analysis and Implications

The decision has attracted plenty of media coverage and may have grabbed the attention of not just rugby players, but all sporting participants where there is an intrinsic risk of injury associated with the sport or activity.  This may have been exacerbated by the fact the Claimant is seeking circa £10m in damages. In reality, however, the legal position in Condon was restated as regards the standard of care owed to fellow sports participants. Whilst findings of on-field negligence are rare, the Judge was at pains to stress the “very unusual and exceptional” facts of this case.[14]

There were several things that jumped out from the judgement itself:

  • When considering the relevant legal authorities (paras. 35-45) chronologically, oddly the Judge made no reference to recent decisions regarding on-field negligence, such as Tylicki v Gibbons [2021] EWHC 3470 (QB) and Fulham Football Club v Jones [2022] EWHC 1108 (QB).  Both those cases affirmed that the English courts will not impose liability lightly.
  1. In Tylicki, the judge cited the principles emanating from Caldwell v Maguire & Fitzgerald [2001] EWCA Civ 1054, including that it may be difficult (in practice) to prove breach of duty, absent proof of conduct that amounts to reckless disregard for a fellow participant’s safety.
    1. Meanwhile, the judgment in Fulham FC v Jones made clear (at para. 63) that a mere breach of sporting rules (which, in the case of football, were not drafted with civil liability in mind) does not equate to negligence.[15]
  • The Judge applauded how the “skilful and precise cross-examination [of Mr Spreadbury by the Claimant’s counsel] elicited [a number of] concessions[16], which were then expressly adopted and relied upon by the Judge.  He was also “impressed with the overall evidence of Morrison and his views of the match in general”.[17]  In circumstances where considerable weight will be placed upon the expert evidence to decide liability, this illustrates the extent to which evidence which is good on paper may not be as robust after cross-examination.  
  • In this case, the photographic imagery (inserted at para.16) was more effective than any number of words could be in illustrating the “wholly unconventional[18] and “obviously dangerous[19] execution of the injuring tackle. Without the video footage, the Judge would have needed to rely solely on factual witnesses, and the case may have taken a different direction.
  • The premeditative aspect of the offence is heavily emphasised. Again, the video footage played a crucial part in demonstrating that there had been a culmination of events which led to the point where “the red mist had metaphorically descended over the Defendant’s eyes[20], rather than the injuring tackle being considered in isolation.
  • Whilst the rules of rugby are complex and constantly evolving, the analysis of its laws is (at times) hard to follow and (on occasion) incorrect. The latter may well be due to the experts applying the rules at the time of the incident, which have since moved on.  For example, at para. 24 it states that “for a player to be in possession, he or she had to be carrying the ball” – however, possession is no longer framed as such in the current World Rugby Laws of the Game (which defines possession as “an individual or team in control of the ball or who are attempting to bring it under control”).

Overall, the threshold for negligence is and remains high, but the case is a good reminder that those who participate in sport, whether professional or amateur, do not have unfettered discretion, nor de facto legal immunity, to behave as they like when they cross the proverbial white line.  Moreover, participants will be prudent to ensure that they have the requisite insurance in place to protect themselves financially from potential claims (or injuries incurred), whether that be a direct policy or via the relevant governing body, club/team or event organiser.  Ignorance of the law will be no defence.

The full Judgment can be accessed via the following link.

[1] Para. 58(ix) of the Judgment

[2] Para. 46 of the Judgment

[3] Para. 9 of the Judgment

[4] Para. 11 of the Judgment

[5] Para. 16 of the Judgment

[6] Para. 18 of the Judgment

[7] Para. 27 of the Judgment

[8] Para. 32 of the Judgment

[9] Para. 33 of the Judgment

[10] Para. 58(xi) of the Judgment

[11] Para. 58(x) of the Judgment

[12] Para. 59 of the Judgment

[13] Para. 60 of the Judgment

[14] Para. 62 of the Judgment

[15] Interestingly, reference is made in that judgment (paras. 27 and 53) to the unreported judgment of Hallet J in Pitcher v Huddersfield Town FC (HQ 0005953 – QBD transcript, 17 July 2021) in which she described cases in which the threshold for liability is reached as “football crimes”.

[16] Paras. 33 and 59 of the Judgment

[17] Para. 57 of the Judgment

[18] Para. 49 of the Judgment

[19] Para. 58(ix) of the Judgment

[20] Para. 58(vii) of the Judgment