Goodbye Galloway? Tackling negligence in contact sports

Generally speaking, injuries (however serious) sustained in the course of contact sports are an accepted risk and do not sound in damages. The courts have on occasion deemed actionable injuries sustained where the conduct of the opposing player fell below the standard of care expected in all the circumstances.

In the case of Dani Laura Chelsea Czernuszka (nee Watts) v Natasha Mercedes King [2023] EWHC 380 (KB) before the Honourable Mr Justice Martin Spencer, the issue for the court was whether, for the Defendant to be found liable for injury sustained by the Claimant in a rugby match, it was necessary for the court to find that the Defendant was reckless or exhibited a very high degree of carelessness in the circumstances – and whether the Defendant’s actions which caused the Claimant’s injury met the applicable legal test. It was held that the Defendant was liable to the Claimant in negligence.

What was the background?

On 8 October 2017, the Claimant, aged 28, participated in her first competitive game of rugby. The Claimant in this case had been playing for the Sirens team, and the Defendant was the captain of the Bracknell Ladies team. It was a game that would change the Claimant’s life.

The match on 8 October left the Claimant paraplegic and permanently wheelchair-dependent. She claimed damages in negligence against the Defendant, whose “tackle” caused her injuries (described throughout in inverted commas for reasons that should become clear at the conclusion of this article). There were allegedly several incidents involving the Defendant in the lead up to the injuring “tackle”. The Sirens were described as a quicker, and more skilful team, with the Claimant being one of their standout players. In her evidence, the Claimant said that prior to the index event she heard the Defendant say: “that fucking number 7, I’m going to break her”.

The injuring “tackle” in this case occurred during a ruck whereby the Claimant was reaching down to get the ball. The Defendant put her entire bodyweight forward and down on the Claimant’s back, parcelling up the Claimant by grasping her thighs just above the knees. The Claimant was driven down onto her backside with her body still bent forward and the full weight of the Defendant landed on top of her, with her neck, head, and spine all put at risk. The Claimant immediately sustained a T11/12 fracture dislocation with a T10 ASIA B spinal cord injury.

The Judge heard expert evidence from two retired referees – Mr Edward Morrison for the Claimant, and Mr Anthony Spreadbury for the Defendant.

What did the court decide?

1. The court found that the players had a duty to be mindful of each other and to play with the understanding that enjoyment and learning were the main objectives. Even in a prior ‘friendly’ match, the Bracknell team had played the game in intimidating manner, taking their lead from the Defendant (for example, through their use of abusive language.)
2. The Defendant, despite attempting to intimidate the Sirens, became agitated when it became clear that her tactics were failing. After the Defendant had winded herself during a previous tackle with the Claimant, she was looking for an opportunity for revenge on the Claimant. As per paragraph [58], “the red mist had metaphorically descended over the Defendant’s eyes”. The Defendant launched herself at the Claimant who was clearly bent over in a highly vulnerable position, reaching for the ball. In doing so, the Defendant executed a “tackle” that was not recognised in rugby: she drove the Claimant backwards, and crucially, downwards, in a move which was patently dangerous.
3. There was no finding that the Defendant intended to injure the Claimant, but the Judge did find that the “tackle” was executed with reckless disregard for the Claimant’s safety in a manner which was liable to cause injury.
4. The “tackle” was a reckless and dangerous act and fell below an acceptable standard of fair play. The Judge did not find there was an error of judgement in the execution of the “tackle” – the Defendant did exactly what she had set out to do.
5. The correct legal test was whether the Defendant failed to exercise such a 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.
6. The court did not find that the Court of Appeal in Blake v Galloway [2004] 1 WLR 2844 (“Galloway”) intended to lay down any rule or principle within a sporting context that 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 circumstances concerning a specific injury arising out of horseplay and with the factors described by Dyson LJ (informal play which was being conducted in accordance with certain tacitly agreed understandings or conventions, with no expectation that skill or judgment would be exercised). The need to establish recklessness was expressly rejected by the Court of Appeal in Smoldon v Whitworth (1997) ELR 249. Even if the Judge in the instant case was wrong on the appropriate test, the Defendant was reckless such that the higher, stricter test, would have been satisfied in any event.
7. As for the degree of care, the Defendant was a heavy and experienced player – she was dominant in a game involving novices. The Claimant never had possession of the ball. The Defendant could see the Claimant was vulnerable. In this very unusual and exceptional context, the Defendant executed a manoeuvre that had never been seen before by the Claimant’s expert in his 60 years of experience and only seen twice by the Defendant’s expert. The Defendant was liable to the Claimant for the injuries she sustained.

Significance

The case serves as an important touchstone on the relevant legal principles in claims for injuries arising during contact sports. It is not that this case is a bid farewell to the principles in Galloway, but rather, it clarifies what the judgment in Galloway was intended to mean. This is best encapsulated by paragraph [45] of the Judgment:

“I do not see that there is necessarily a conflict between the Condon test and the decision and reasoning in Blake’s (Galloway’s) case: my understanding of the judgment of Dyson LJ is that, in the particular circumstances of that case, involving as it did horseplay and the various other characteristics set out above, only if the Defendant were to be found to have been reckless or to have shown a very high degree of carelessness could he be found liable. I do not understand Dyson LJ to have been laying down such a test for every case, nor to have dissented from the proposition that the overarching test for liability is whether the Defendant failed to exercise such degree of care as was appropriate in all the circumstances. All he was saying was that, in those circumstances (horseplay with all the characteristics he describes), the appropriate degree of care is not satisfied, and the Defendant is not liable, unless he could be shown to have been reckless or guilty of a very high degree of carelessness.”

To recap, the legal test is as follows: whether the Defendant failed to exercise such a degree of care as was appropriate in all the circumstances.

Article by Charlotte Wilk.