Tackling difficult issues for the law of negligence and rugby: Czernuszka v King

By Michael Randall - Posted on 3 March 2023

On 23 February 2023, the High Court passed judgment in the case of Czernuszka v King. The case required the court to consider the liability of the defendant in relation to a tackle performed during a rugby game in October 2017. The full judgment can be read at the following link: https://www.bailii.org/ew/cases/EWHC/KB/2023/380.html.

It should be noted that this case fits squarely in the middle of the Venn diagram of my interests. I coordinate and teach on the Tort law course at Strathclyde, and am an avid rugby union fan with a season ticket for the Glasgow Warriors, and make frequent trips to Scotland international games. My father also regularly attends lower league rugby in the Admiral Welsh Division 1 West League, something we often chat about (and I hope to attend a game with him over Easter). In short, this means that I am reviewing the case both as a fan and as a tort law tutor, and on occasion one may be more prevalent than the other.

Summary of Facts

The claimant was 5’3” and 9 stone, and was participating in one of her first games for a newly formed rugby club playing in a development league in England. The defendant was 5’5” and was 17 stone, and had been playing rugby for approximately 10 years. The defendant had competed at a higher level for the team (which disbanded in 2014, but reformed in 2016).

The two teams met in a friendly match in May 2017. During this match, it was alleged that the defendant punched one player, broke another’s arm and struck another player. The May 2017 game is not actually the game which is the subject of consideration here, but is used in the judgment to give background context to the perceived nature of the defendant’s playing style.

The match in question happened on 8 October 2017 and was filmed by the claimant’s team. Evidence was provided which demonstrated that the defendant had committed acts of foul play prior to the incident in question, and was aggressive in her playing style and demeanour.

During the game, the claimant executed a legal tackle on the defendant, but one which left the defendant winded. After this, the claimant had high-fived a team mate to celebrate – something which could have been interpreted by the opposing team as celebrating an injury. It is alleged that the defendant then stated that she was going to “break” the claimant (I have chosen not to repeat the more ‘expletive’ language).

Later in the game, the claimant found herself in a particularly vulnerable position in which she was bent over with her head down, looking to pick up the ball from the ground. The defendant executed a tackle which involved using her body weight/force to push the claimant to the floor, forcing her backwards and compressing the claimant’s spine in a dangerous manner. The claimant suffered a serious spinal injury, leaving the claimant with paralysis below the waist.

Contested Point of Law

In order for an action in negligence to be successful, several steps need to be satisfied. The terminology ‘claimant’ and ‘defendant’ applies in English and Welsh tort law cases, rather than the Scots law terminology of ‘pursuer’ and ‘defender’.

There must be a duty of care owed by the defendant to the claimant, there must have been a breach of that duty, the breach must have (as a matter of fact) caused the harm the claimant suffers, and the breach must also have (as a matter of law) caused the harm (i.e. not been too remote).

The contested point in this case is the breach of duty. The court firstly needed to set the standard of care owed, and then consider whether the actions of the defendant fell below that standard.

In reviewing previous cases, it is clear that the standard of care owed was one of an objectively reasonable standard to avoid causing injury to another competitor. The key was whether the defendant had executed a tackle in which she had failed to exercise a reasonable standard of care in the circumstances. The fact that a tackle is illegal or dangerous is not enough to determine liability, but as part of the assessment, the court looked at a range of factors (including whether the defendant was offside, and whether the claimant had possession of the ball).

The Reliance on Expert Evidence

One of the most striking aspects in reading the case itself is the initial widely contrasting viewpoints of the expert witnesses and how, through cross-examination, one side’s evidence is delegitimised. Both experts were former international referees.

The claimant’s expert argued that the defendant was offside, and that the general conduct of the defendant throughout the game (including in the offending tackle) was not an acceptable standard of fair play. In his evidence, recorded in paragraph 27 of the judgment, he noted that “As someone who has been involved in rugby for almost 60 years, as a player, coach, referee or administrator, I have never witnessed such a reckless incident”.

The defendant’s expert initially gave evidence that in his view, rugby is a contact sport, the defendant was onside, a legal tackle was executed and that there should be no sanction of a penalty kick in accordance with the rules of the game. Cross examination by the claimant’s counsel did lead to the following concessions, which are integral to determining the legitimacy of the tackle (the following bullet points are directly taken from paragraph 33 of the judgment).

• 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

These concessions fundamentally damaged the defendant’s position – the mechanics of the tackle were dangerous, and agreeing that the claimant was not in possession meant that a legal tackle couldn’t be executed. Effectively, the remaining argument from the defendant (outlined at paragraph 52 of the judgment) is that she remained onside in accordance with the rules of the game, and was entitled to make a tackle. Therefore, the legitimate criticism is in the way the tackle was executed, and that the objective view is that it was simply mistimed (i.e. not a reckless disregard for the claimant’s safety).

The Decision

The judge, Mr Justice Spencer, found for the claimant, outlining 12 points at paragraph 58 to justify his reasoning (some of which referred to the context from the May 2017 match). The most pertinent justifications for the decision are found in points 9-11:

“(ix) The Defendant, without any regard for the well-being or safety of the Claimant and intent only on exacting revenge, executed the "tackle" in a manner which is not recognised in rugby: she drove the Claimant backwards and, importantly, downwards using her full weight and strength to crush the Claimant in a manoeuvre which was obviously dangerous and liable to cause injury: it is no mitigation for what the Defendant did that she was going forwards, as Mr Brown submitted: the force and momentum were equally downwards, as Mr Morrison said;

(x) I do not find that the Defendant intended to injure the Claimant, indeed that is not alleged against her: I do find, though, that the "tackle" was executed with reckless disregard for the Claimant's safety in a manner which was liable to cause injury and that the Defendant was so angry by this time that she closed her eyes to the risk to which she was subjecting the Claimant, a risk of injury which was clear and obvious;

(xi) In particular, there was no error of judgment in the tackle: I find 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;”

The finding that the defendant wanted to exact revenge on the claimant, but did not intend to injure the claimant (at least in the manner which resulted in this dispute) is noteworthy. Intention did not matter – it was the reckless disregard shown by the defendant when executing the tackle which was key to establishing liability.

A Welcome Change in Culture and Protecting Players

Rugby prides itself on being a game which is inclusive – a game for all shapes and sizes. There are a whole host of health and social benefits to exercise and being part of a community, and while there can be a tendency to focus on discussions at the professional level due to the accessibility of games and notoriety of incidents in a single match, with time for review during a broadcast, the game cannot exist without a grassroots game. The RFU in England, WRU in Wales, SRU in Scotland and IRFU in Ireland all have introduced initiatives to increase participation in amateur and club rugby irrespective of gender or age.

In this very case, the two teams were part of a development league – they were playing, in theory, to help each other improve. In Mr Morrison’s evidence, he noted that the development league was set up in 2017 by the RFU and that “As women traditionally had not enjoyed the luxury of being taught the game through PE in schools, the development league was used as a means of introducing women into the game via affiliated clubs”. A lot of the discussion in the case focuses on the spirit of rugby, and that the attitude of the defendant was wholly at odds with the level being played – the judgment, by including reference to the May 2017 ‘friendly' match, and in assessing the language used by the defendant, demonstrated the disconnect with playing in a developmental league.

Rugby is and remains a contact sport. One of the reasons I prefer watching rugby union as a sport is because of its distinctive nature of contested scrums and mismatches in size – in a few weeks’ time, I will be at the Scotland vs Italy game, and I am looking forward to seeing Ange Capuozzo in a foot race against Duhan van der Merwe.

This is, by no means, the first case involving rugby injuries arising from the contact nature of the sport. Seeing the still images in the judgment conveys just how bad a tackle it was. The case has not established an entirely new standard in determining that the applicable standard of care owed is of reckless disregard. What the case does present is a contemporary discussion of the manner in which the test would apply in England and Wales, factoring in the level of competition, the specific sporting context of a rugby match and the mechanics of determining if the standard of care was met.  But it is a decision which has a set context – a reckless disregard in rugby is not going to be the same as a reckless disregard in (for example) ice hockey. Nevertheless, for rugby specifically, there are two points to conclude on.

Firstly, it is a really positive shift in culture. The ‘old school’ view of 30 players beating each other up for 80 minutes, shaking hands and having several drinks in the bar afterwards is antiquated. The spirit of rugby discussions are paramount in the case, and there is a collective recognition of the defendant going beyond a physical sporting contest, and starting to injure players (with the expert referees reviewing the whole game and other incidents of foul play in the October 2017 match). Even if the defendant was onside and the claimant had possession of the ball, a reckless disregard was apparent here. Following this judgment, there is clearly a greater positive obligation on players now to try and protect each other. If players assume greater responsibility and the game is safer, more people can be comfortable playing the game. We now have a better understanding of a reasonable standard of care, and it is for coaches and fellow players to help instil that standard.

Secondly, as a fan, the game is rightly reckoning with its past partly as a consequence of the number of concussions and neuro-degenerative injuries sustained by players (something which it has to continue to manage and look to redress). There may be arguments to the effect that ‘the game’s gone soft’ or ‘we might as well be playing touch rugby’. However, to get full buy in from all players and spectators, we need the game’s rules and regulations to be fit for purpose. This case reminds us again that injuries arise in a multitude of ways, not simply as a result of tackle height, on which a lot of the current discussion is focused (see, for example the controversial response to a recent RFU edict to lower the tackle height at the amateur game in England).

As an example of where the rules and regulations need to develop further, the jackal position (in which players compete over the ball with their heads down) is an integral part of the game, and players are putting themselves in vulnerable positions. Paradoxically, the greater the degree of compliance by players with the rules governing this area, the more vulnerable they are – this is in particular for ‘croc rolls’ which involve the opposing team twisting the player in a vulnerable position, leading to horrific knee injuries.

What the case ultimately reinforces is that in a sporting context, the assessment on standard of care has to be an objective reasonable standard owed between participants. The game, and sport in general, will never be 100% safe. But it is a timely reminder to all stakeholders of the importance of protecting players as much as possible.

Potential Application in Scotland

The judgment builds upon the case law in England and Wales concerning liability for injuries sustained in a sporting context. For example, it cites Condon v Basi (1985) – a case in which it was determined that (in the context of a football tackle) a higher standard of care is expected at a higher level and a lower standard of care at a lower level. There have also been previous cases involving injuries sustained during a collapsed scrum, for example Smoldon v Whitworth (1997) and Vowles v Evans (2003). However, there have been relatively fewer cases in Scotland where delictual liability in a sporting context has been established.

The key case to help us to assess whether a court in Scotland may have reached the same outcome as Czernuszka is Sharpe v Highland and Islands Fire Board (2007). This case concerned an allegedly dangerous tackle during a football match. The resultant standard settled upon by the Inner House was to determine the conduct against the standard of skill which might be expected, depending on the particular sporting environment. In other words, the test was whether the competitor in question committed an error of judgment that a reasonable competitor would not have made. This objective standard of reasonableness, focusing on the objective standard of skill expected is a variation of the objective standard of reasonable care as applied in a sporting context. This differs from the reckless disregard standard established in England and Wales and applied in the Czernuszka judgment.

However, Sharpe is also noteworthy for setting a high evidential standard – the pursuer presented evidence from three players, whereas in Condon, the evidence relied upon was provided by the expert referee. In the absence of any camera footage, or more authoritative evidence, liability was not established. In contrast, in Czernuszka the claimant’s team recorded the match as part of their ongoing training and participation in the development league, and the footage could be reviewed by two international referees.

Therefore, although the specific tests to determine the standard of care expected in negligence cases in a sporting context differs between the two jurisdictions, it is likely that if the exact same circumstances happened in Scotland, the outcome would have been identical. However, if the same tackle had occurred and no video evidence was available, the courts in Scotland would have needed to determine an appropriate alternative means by which to determine whether the tackle fell below the standard of care owed. In the tortious case of Condon, the evidence of the match referee was used. In Czernuszka, the match referee’s evidence is not presented. However, the referee did blow the whistle for full time, and did not penalise the defendant for the tackle at the time of the incident.

The photo used on the homepage of the Strathclyde Law Blog is from an unrelated match between Club de Rugby Femenino de Málaga and Club de Rugby Femenino de Granada, used under the Unsplash Licence.