SPORTING INJURIES AND CIVIL EVIDENCE: WHEN THE DEFENDANT’S EXPERT CONCEDES THE CLAIMANT’S CASE IN CROSS-EXAMINATION

The judgment of Mr Justice Martin Spencer in Czernuszka v King [2023] EWHC 380 (KB) contains important observations in relation to the duty of care owed to those taking place in sporting activities.  It also shows the important role of cross-examination in relation to expert evidence.  In this case case the defendant’s expert did a volte face and, by the end of the cross-examination, supported the claimant’s case. (The judge also had photographs of the rugby tackle in question which feature in the judgment itself).

“It was, however, in relation to the mechanics of the tackle that Mr Spreadbury conceded the whole of the Claimant’s case and the views put forward by Mr Morrison in a way which represented a complete volte face from the position he had taken in his report.”

THE CASE

The claimant, a 28 year old mother of two, suffered serious injuries when playing a game of rugby. She brought an action against the player who tackled her, arguing that the tackle was outside the rules of the game.

THE JUDGE’S DESCRIPTION OF THE TEST TO BE APPLIED

  1. On 8 October 2017, the Claimant, aged 28 and a mother of two, in her first competitive game of rugby, suffered an injury to her spine which has left her paraplegic and wheelchair-dependent for the rest of her life. By this claim, she claims damages in negligence against the Defendant, who carried out the tackle which caused this injury. Unfortunately, injuries sustained in the course of games of rugby, and other sports such as association football, are not uncommon, these being contact sports played at speed where players can differ in height, stature and weight. In general, injuries, even serious injuries, are an accepted risk of the sport and do not sound in damages. However, sport is not exempt from, or immune to, the law of negligence. As will be seen (see paragraphs 35-45 below), the courts have deemed actionable injuries sustained where the conduct of the opposing player fell below the standard of care appropriate and to be expected in all the circumstances. Sometimes, by reason of the particular circumstances, the bar for that standard will be set high requiring recklessness or a very high degree of carelessness: see, for example, Blake v Galloway discussed at paragraphs 44 and 45 below. The main issues in this case are whether, for the Defendant to be found liable, it is necessary for the court to find that she was reckless or exhibited a very high degree of carelessness given the particular circumstances of this case and whether, depending on the court’s findings in relation to the first issue, the tackle executed by the Defendant which caused the Claimant’s injury met this test so as to render the Defendant liable to the Claimant in damages.

THE DEFENDANT’S EXPERT

The judge heard evidence from two experienced rugby referees Mr Morrison and Mr Spreadbury.   The change of view of the defendant is particularly interesting.  The claimant’s expert gave evidence that the tackle was against the rules.  This was, initially, denied by the defendant’s expert. However, a different view emerged after cross-examination.

THE JUDGMENT IN RELATION TO THE DEFENDANT’S EXPERT

    1. Mr Spreadbury is also a renowned, experienced and accomplished referee. He set out his career in summary as follows:
“At the time of this incident, I was Head of Professional Game Match Officials Team (PGMOT) at the RFU. This involved management of all professional staff, contracting part- time staff, appointments of all match officials for all professional competitions, Director of Ruby Liaison, performance reviewers and coaching strategy. I received international recognition when I refereed my first Tier 1 v Tier 1 international between Australia v France in May 1990.1 have refereed 44 international matches and refereed at the 2003 and 2007 World Cups. I am now the Head of Match Officials at European Professional Club Rugby. I became a member of the Rugby Football Union County Championship Panel in 1984. I joined the RFU as a full-time referee in 2001. 1 have refereed several domestic and European games. I retired at the end of 2007/8 season and then joined the RFU as an elite referee coach. I am a World Rugby Match Official Selector and have been for the last two years.”
    1. In his report, he took a position which was very different to that of Mr Morrison. He stated his opinion as follows:
“Rugby Union is a contact sport. It is permitted in rugby to tackle your opponent, providing the player has the ball or is attempting to control the ball and, using your hands, to take them to ground. In my opinion the video of the match is clear. Natasha King was not off-side, nor did she commit any act of foul or dangerous play in accordance with the Laws of the Game . The referee was well placed to see the incident and he did not penalise Natasha King. I was assisted with the video and audio of the incident. In my view these confirm that the ball was out of the ruck (blue no. 16 is not bound at the ruck) and there is a shout of “ball’s out”. Natasha King executes a legal tackle correctly.
A legal tackle in Rugby Union is when a player of one team attempts to hold a player of the opposing team who has the ball and to take him/her to ground with the intention of obtaining possession of the ball or of preventing the other player from advancing with the ball or passing it to a team- mate. A legal tackle is one that is made on the opposing player from the shoulders down.
The sanctions open to a referee for a breach of the laws are (a) penalty (b) yellow or (c) red card. There was no basis for any sanctions.”
    1. In cross-examination, however, Mr Spreadbury resiled from his somewhat extreme position and came much closer to the position of Mr Morrison. He agreed that, within the definition of “possession” as set out in the 2017 laws of the game, the Claimant was not in possession and that his gloss of a player being in possession who is “attempting to control the ball” did not accord with the actual definition. He further conceded that, within Law 10.4(e), to tackle a player who is not in possession of the ball amounts to a dangerous tackle, which also falls within the definition of an early tackle, and was therefore dangerous on that account too.
    1. It was, however, in relation to the mechanics of the tackle that Mr Spreadbury conceded the whole of the Claimant’s case and the views put forward by Mr Morrison in a way which represented a complete volte face from the position he had taken in his report. Mr Weir KC’s skilful and precise cross-examination elicited the following concessions:
  • The Claimant was in a vulnerable position because she was not bracing herself for a tackle but was stationary, leaning forward, thereby exposing her head, neck and back;
  • The Claimant was vulnerable by reason of her size and stature, compared to the Defendant;
  • All the Defendant’s weight went into and onto the Claimant’s back from the start of the tackle;
  • The mechanism of the tackle had the effect of concertinaing the Claimant about her lower back;
  • He would not want to see such a tackle on a rugby pitch because this was liable to give rise to serious injury: he had only seen 2 such tackles in all his career as a referee;
  • This was the very epitome of dangerous tackling;
  • A player in the position of the Defendant has a choice whether to execute the tackle and has a duty of care towards the other player;
  • From start to finish, the Defendant only had eyes for the Claimant and at no stage did she attempt to play the ball.
  1. As Mr Weir submitted, these concessions on the part of Mr Spreadbury put the Defendant in a difficult position. On her pleaded case, she did nothing wrong at all: she was not offside, the ball was out of the ruck, the Claimant was in possession of the ball and therefore liable to be tackled, and there was nothing wrong in, or in relation to, the physical contact used to make the tackle or in the Defendant’s tackling technique. Thus, it was not contended that the Defendant had made an error of judgment: in effect, the Defendant’s case was that, faced with the same situation, she would have done the same again. Two of the essential struts to the Defendant’s case had, by the end of Mr Spreadbury’s evidence, gone: the Claimant was not in possession of the ball and so should not have been tackled at all; and the mechanics of the tackle itself were dangerous and liable to give rise to serious injury whereby such a tackle had no place on the rugby field. This meant that, if the Defendant’s defence to this claim were to survive, it would have to be put forward on a very different basis.

 

THE RESULT

The judge found that the claimant had established her case.

    1. I agree with, and adopt, Mr Morrison’s description of the tackle set out at paragraph 27 above, and in particular his assessment that this was a “reckless and dangerous act and fell below an acceptable standard of fair play.” I also adopt and rely on the concessions made by Mr Spreadbury as elicited by Mr Weir KC in cross-examination, as set out at paragraph 33 above.
    1. So far as the legal test is concerned, I endorse Mr Weir KC’s basic proposition that, within the law of negligence, the test is whether the Defendant failed to exercise such degree of care as was appropriate in all the circumstances: this was the test endorsed in Condon v Basi [1985] 1 WLR 866 where the Court of Appeal adopted the formulation and approach of Kitto J in Rootes v Shelton [1968] ALR 33. In particular, I do not consider that 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 in order for liability to be established. That was the standard applied in that particular case, and in the particular circumstances of that injury arising out of horseplay with the factors described by Dyson LJ and set out at paragraph 44 above. Indeed, a requirement to establish recklessness was expressly rejected and disapproved by the Court of Appeal in Smoldon v Whitworth (1997) ELR 249. However, if I am wrong about that, it doesn’t make any difference in this case because, on my findings, the Defendant was indeed reckless and so satisfies this higher, more stringent, test in any event.
    1. In relation to the particular circumstances of the present case, which underpin the (legal) standard expected of the Defendant in this match, I agree with and adopt the characteristics advocated by Mr Weir KC and set out in paragraph 47 above relating to both the Defendant and the level of this game. Furthermore, I agree with and adopt the features relied on by Mr Weir and set out at paragraph 49 above, save in one respect: I do not think that the Defendant was offside. However, at this level and against this opposition, the Defendant should have modified her conduct because it was or should have been apparent that the Claimant was treating the situation as though there was still a ruck and had adopted a stance consistent with that, namely the stance of a scrum-half bending down to pick up the ball from the scrum which made her vulnerable as she was stationary, bent over and not suspecting that tackle was coming: so much was, or should have been, obvious to the Defendant.
  1. I therefore find that in this very unusual and exceptional context, the Defendant executing a manoeuvre which was not within the experience of Mr Morrison and virtually outside the experience of Mr Spreadbury, the Defendant is liable to the Claimant for the injuries which the Claimant sustained, and there shall be judgment for the Claimant.