Foul play leads to catastrophic injury

The recent High Court decision of Justice Martin Spencer in the split liability case of Czernuszka v King [2023] EWHC 380 (KB) highlights the legal principles to be applied in establishing negligence in sporting contests.

The incident

The claimant, aged 28 and a mother of two in her first competitive game of rugby, suffered an injury to her spine which left her tetraplegic and wheelchair dependent for the rest of her life.  She claimed damages in negligence against the defendant who carried out the tackle causing the injury.

The claimant, who was 5ft 3” in height weighing nine stone, played in the position of flanker for Sirens ladies team. The defendant, captain of Bracknell Ladies, was 5ft 5” tall and weighed between 16 and 17 stone.

The whole game was captured on video including the tackle that led to the tetraplegia. On viewing the footage Mr Justice Spencer found that throughout there was deliberate and gratuitous action by the defendant to "take opposition players out".

He said, “I take the view that the Defendant, despite attempting to dominate the play and use her weight and greater experience (as well as her language) to intimidate the Sirens players, became increasingly frustrated as the game went on and her tactics were seen not to be succeeding. The Sirens were a quicker more skilful team and one of their stand out players was the Claimant. She showed great speed, skill and resilience and she was impervious to whatever the Bracknell players in general, and the Defendant in particular, threw at her”.

At 63:02 minutes into the match and therefore near the end of the game there occurred what was referred to as Incident 7’. This involved the claimant, in possession of the ball, running towards the defendant who executed what had been described as “one of her dominant tackles” by grabbing the claimant around the waist and driving her to the ground. However, the defendant was winded in making this tackle and it was suggested she was humiliated by what had occurred.

The judge accepted the evidence of the claimant that after Incident 7 the defendant said, “That f****** number 7, I’m going to break her.”

The tackle that caused the injury was referred to as Incident 9 and was described in the following way:

After a ruck the claimant was bending down to pick up the ball at which point the defendant did not compete for the ball but instead went straight for the claimant. The defendant placed her whole 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 bottom with her body still bent forward and the full weight of the defendant landed on top of her, with her head, neck and spine at full risk. The claimant immediately sustained a T11/12 fracture, a T10 ASIA B spinal cord injury.

The judgment contains the following photographs of the incident.

The judgment

The judge made the following findings of fact:

1. Although this was a league match, the nature of the league being developmental meant that the players were still learning the game and it should have been played in that spirit; 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, not winning.
2. However, even in a previous “friendly” match between the sides, Bracknell played the game in an inappropriately aggressive and intimidating manner, using “trash talk” (swearing a lot, including using abusive language directed at the opposing players), with the Bracknell players taking their lead from the defendant, and this carried into the league game.
3. The inappropriate approach of the defendant in a previous match led to Siren players breaking an arm, sustaining a head injury and being punched.
4. The two sides were playing “very different games”. The Bracknell players, who were generally much bigger, relied on their size and aggression whereas Sirens relied on their speed. As the game slipped away from Bracknell their players upped their rough tactics which included the defendant driving one of the Sirens players to the ground well after the ball had gone, in an off the ball incident.
5. The defendant, despite attempting to dominate play and use her weight and greater experience (as well as her language) to intimidate the Sirens players, became increasingly frustrated as the game went on and her tactics were seen not to be succeeding.
6. This culminated in Incident 7, and the reaction of the Sirens players after such an incident could have been interpreted by the Bracknell players as celebrating an injury to their captain as she was winded.
7. The defendant did utter the words described previously before Incident 9 and she was looking for an opportunity to get revenge on the claimant. “The red mist had metaphorically descended over the defendant’s eyes”.
8. That opportunity came about 3 minutes later when, after the ruck, the claimant took up the position of acting scrum half and bent down to pick up the ball. The defendant, with eyes only for the claimant, not the ball, and before the ball was in the claimant’s possession, launched herself at the claimant who was obviously bent over in a highly vulnerable position, unsuspecting and unprepared to protect herself against what was to occur.
9. The defendant, without any regard for the wellbeing or safety of the claimant, and intent only on exacting revenge, executed the tackle in a manner which was 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 was no mitigation for what the defendant did that she was going forward.
10. The defendant did not intend to injure the claimant but the tackle was executed with reckless disregard for her safety in a manner which was liable to cause injury. The defendant was so angry by this point that she had closed her eyes to the clear and obvious risk of subjecting the claimant to injury.
11. There was no error of judgement in the tackle - the defendant did exactly what she set out to do. Whether or not the claimant had possession of the ball was irrelevant to her; at that moment she was not attempting to play within the laws of the game, but to exact retribution on the claimant.
12. Despite the claimant lying prostrate and obviously injured, the defendant walked away towards her own goal line apparently unconcerned for the claimant and what she had done. Nothing could have been further from the spirit of the game.

The judge endorsed the submission of Mr Weir KC for the claimant, that the test to be applied in establishing negligence is whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances, as endorsed in Condon v Basi [1985] 1 WLR 866. 

The judge did not consider that the Court of Appeal in the case of Blake v Galloway 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. However, the judge said that if he was wrong about that, it made no difference because in this case he found the defendant was indeed reckless and so satisfied a higher, more stringent test in any event.

In his arguments as to negligence, Mr Weir KC asserted that the defendant was offside when the tackle was made. The judge disagreed but said, 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 this was 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 the tackle that was coming. This was, or should have been, obvious to the defendant.

In the circumstances the judge found the defendant was liable to the claimant for the injuries suffered and ordered judgment.

Keoghs comment

This case is an interesting reminder of the principles to be applied in establishing whether conduct amounts to negligence in the sport of rugby. It identifies the features which the court are likely to take into account in making an assessment as to whether the actions of a player has transgressed the line from being all part of the game to something that is regarded as negligent.