Breach of Duty in Organised Sport Not Requiring Recklessness

In Czernuszka v King [2023] EWHC 380 (23 February 2023) – a decision of Martin Spencer J of the King’s Bench Division – his Honour, in a case involving catastrophic injury suffered by a woman rugby player, engaged in consideration of the content of the standard of care owed by one player to another.  Was breach founded on a need to prove reckless conduct on the part of the defendant, or did the ordinary standard of care apply?  His Honour found the latter but acknowledged that a lesser standard of care obtains only in more informal sporting activity.  On the facts, his Honour found for the plaintiff.

A summary of the facts from the headnote is useful to set out (the plaintiff being referred to as “the claimant”):

The claimant was a member of a rugby team as part of which she participated in her first competitive league match at the “developmental” or starter level for those learning the sport. Many team members on both sides were novice players. The opposing team included the defendant who attempted to dominate the play and use her weight and greater experience (as well as her language) to intimidate the claimant’s team. As the game went on the defendant became increasingly frustrated as her tactics appeared not to be succeeding. Towards the end of the match, the defendant tackled the claimant but was winded by her own tackle. Shortly thereafter, a ruck formed after which the claimant, acting as scrum half, bent down to pick up the ball. Before the ball was in the claimant’s possession the defendant launched herself at the claimant, while the latter was bending over in a highly vulnerable position, and landed on her with full weight in a belly flop position, directly on top of the claimant’s neck and back with her hands on the claimant’s legs. The claimant suffered an injury to her spine which left her paraplegic and wheelchair-dependent for the rest of her life. She brought a claim against the defendant for damages in negligence, alleging breach of duty of care by failing to exercise such a degree of care as was appropriate in all the circumstances. The defendant resisted the claim, contending, inter alia, that in a sporting context liability could be established only if a defendant was shown to have been reckless or to have demonstrated a very high degree of carelessness. The court ordered that liability be tried as a preliminary issue

His Honour wrote:

[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 paras 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 [2004] EWCA Civ 814; [2004] 1 WLR 2844 discussed at paras 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.

[16] The movement which ends with the injury to the claimant starts with a scrum which takes place at 66:50 minutes into the recording, midway between the halfway line and the Sirens’ 10 metre line. The ball comes out to the Sirens number 13 who makes a break over the halfway line and the Bracknell 10 metre line where she is tackled (67:08). The ball comes to the Sirens no 6 who makes a further break over the Bracknell 20 metre line and is tackled halfway between the 20 metre line and the try line (67:25). From the ruck which forms, the ball is recycled on the Sirens side and fed to the claimant who runs towards the Bracknell try line and is tackled about 15 metres short by a Bracknell player other than the defendant. The ball is fed to the Sirens no 14 who is immediately tackled by the defendant: at the same time the claimant is getting to her feet (67:35). A ruck forms from the tackle to no 14. The defendant has got to her feet from tackling the no 14. The ball rests between the legs of the Sirens no 16, but she is not bound to the ruck and the ball is arguably out. The Bracknell coach, Mr Rosi, shouts from the side line “ball’s out”. The claimant has come round to the back of the ruck and, acting as scrum half, bends down to pick up the ball from between the legs of no 16. At the same time as the claimant is bending down, the defendant is coming round the side of what was the ruck with eyes only on the claimant, she does not wait for the claimant to pick up the ball, which remains at all times on the ground and never in the claimant’s possession. Bent over to pick up the ball, the claimant is in a highly vulnerable position. The defendant does not compete for the ball, as she would arguably have been entitled to do, but instead goes straight for the claimant, as shown in this still:

The defendant then puts her whole bodyweight forward and down on the claimant’s back, parcelling up the claimant by grasping her thighs just above the knees. The ball is left behind in the same position on the ground:

The claimant is driven down onto her bottom with her body still bent forward and the full weight of the defendant lands on top of her, with her head, neck and spine all put at risk:

The claimant immediately sustains a T11/12 fracture dislocation with a T10 ASIA B spinal cord injury: this injury is T12 motor complete leaving the claimant paralysed from the waist downwards and a full-time wheelchair user.

…

Edward Morrison

[21] Mr Morrison is a former full-time Professional referee, employed by the Rugby Football Union. He was appointed by World Rugby to over 40 Major Tier 1 International matches, between the period 1990–2001. He was one of only three referees in England to be offered full time status in 1998, having previously trained and worked as an engineer. He has refereed at all levels of the game including Underage Rugby, Men’s and Women’s Rugby at amateur level. He was appointed by World Rugby to referee at the 1991, 1995 and 1999 Rugby World Cup Finals Tournaments and he refereed the World Cup Grand Final between South Africa and New Zealand in 1995. He refereed the Women’s World Rugby Grand Final in Amsterdam between New Zealand and USA in 1998. Upon retiring from active refereeing in 2002, he continued to be employed by the RFU as a Referee Development Officer. In 2007 he was appointed as the Elite Referee Manager, a position he held until 2013. He has attended numerous disciplinary hearings either as a witness, or in an advisory capacity, when players were either cited or sent from the field in cases appertaining to Foul Play incidents.

…

[26] Having carried out an analysis of the game as a whole, Mr Morrison expressed the opinion that, whilst at no stage did he find any reason to question the claimant’s actions in terms of complying with the law of the game, in contrast, up to the time of the claimant’s injury,

“it is evident that there were a number of incidents of D breaching the law of the game, and in some cases, these actions constituted foul play. I have highlighted earlier in this report, the incidents where I believe D did not show due regard to the Spirit or the Laws of the game and was in breach of her duty of care towards her opponents.

“D was clearly one of the most experienced players on the field, which is noted from her own witness statement confirming that she has played the sport for ten years and is apparent from her decision-making throughout the video footage of the match. She was also captain of Bracknell Ladies and clearly the main decision-maker throughout the game. She also took all kicks from penalties awarded against her opponents. On viewing the footage of the game it became apparent to me all the players in the Bracknell side look to the D for leadership. It is my expert opinion that up to the incident in question, D’s conduct did not meet an acceptable standard required of a responsible rugby player.”

[27] In relation to the injuring tackle itself, Mr Morrison, in his report, expressed the view that, at the time that the claimant was bending down to pick up the ball, the ball was still in the ruck and the defendant was therefore offside. He stated:

“The C’s hands are on the ball, ready to be lifted but she is yet to gain possession and the ball remains in the ruck. The C is in the most vulnerable position possible, bent down at the waist with her head and neck exposed. If the D had not been offside and had been further away from C, C would have been able to lift the ball, and raise her head and neck up as she stood up holding the ball, leaving her in a much less vulnerable position, removing the ball from the ruck and leaving her open to a lawful tackle. Instead, the D was dangerously close to the C and despite witnessing C in this vulnerable position, D chose to perform a hard and heavy tackle, directly on top of C’s neck and back. …

“My overall assessment of the play of D in the context of the standard of the reasonable rugby player leads me to conclude that this action was a reckless disregard for the C’s safety and, in any event, fell below the standard of a reasonable rugby player. My reasons are detailed below.

“(1) The action of performing a belly flop with full weight down on top of C whilst having her hands on C’s legs (or at least having her hands on them) had the effect of pushing C’s head towards her legs in dangerous manner. Any reasonable rugby player would have been known that this act of applying force in this way risked causing a serious injury to her spine (or other serious injury), particularly given her weight.

“(2) C’s legs were out in front of her and so by D placing her hands round, or at least on, C’s legs and forcing her full weight on her spine, then C would have had no possibility of avoiding that pressure upon her spine.

“It is ultimately a matter for the court to determine whether this was a negligent or reckless act and why she should have acted in this manner. Particularly as there was no attempt to gain possession of the ball, or push C off the ball, but simply to forcefully flop onto C with her full weight, onto C’s back was inherently dangerous. 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.

“These actions are not those of a responsible rugby player. In my opinion, it was a reckless and dangerous act and fell below an acceptable standard of fair play.”

…

[36] In Condon v Basi [1985] 1 WLR 866, where Wooldridge’s case was not cited, the Court of Appeal had to address the standard of care owed by one player to another on the field of play. This arose out of a game of football played in the Leamington local league when the defendant so tackled the claimant as to break his leg. Sir John Donaldson MR observed that there appeared to be no authority as to what is the standard of care which governs the conduct of players in competitive ports generally or in a competitive sport where the rules and general background contemplate that there will be physical contact between the players, in particular. In a judgment with which the other members of the court agreed, the Master of the Rolls, having cited the judgments of Barwick CJ and Kitto J in the Australian case of Rootes v Shelton [1968] ALR 33, said, at p 868:

“I have cited from those two judgments because they show two different approaches which, as I see it, produce precisely the same result. One is to take a more generalised duty of care and to modify it on the basis that the participants in the sport or pastime impliedly consent to taking risks which otherwise would be a breach of the duty of care. That seems to be the approach of Barwick CJ The other is exemplified by the judgment of Kitto J, where he is saying, in effect, that there is a general standard of care, namely the Lord Atkin approach in Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562 that you are under a duty to take all reasonable care taking account of the circumstances in which you are placed, which, in a game of football, are quite different from those which affect you when you are going for a walk in the countryside.

“For my part I would prefer the approach of Kitto J, but I do not think it makes the slightest difference in the end if it is found by the tribunal of fact that the defendant failed to exercise that degree of care which was appropriate in all the circumstances, or that he acted in a way to which the plaintiff cannot be expected to have consented. In either event, there is liability.” (Emphasis added.)

[37] The passage in the judgment of Kitto J which the Court of Appeal approved reads as follows:

“In a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair [presumably alluding to the maxim ‘all is fair in love and war’], the conclusion to be reached must necessarily depend, according to the concepts of the common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiffs injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organized affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff’s injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the ‘rules of the game’. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.” (Emphasis added.)

[38] In Condon’s case, the court observed that the standard of care was objective, but objective in a different set of circumstances; thus there will be a higher degree of care required of a player in a first division football match than of a player in a local league match. The court also noted how the judge at first instance had found that the defendant had made a tackle “in a reckless and dangerous manner not with malicious intent towards the plaintiff but in an ‘excitable manner without thought of the consequences’” and how the judge had described the defendant to have been guilty of “serious and dangerous foul play which showed a reckless disregard of the plaintiff’s safety and which fell far below the standards which might reasonably be expected in anyone pursuing the game”. That conclusion by the trial judge was one which could not be faulted on its facts: on the law it could not be said that the defendant was not negligent.

[39] In Caldwell v Maguire [2001] EWCA Civ 1054; [2002] PIQR P6, the appellant, Peter Caldwell, a professional jockey, was seriously injured in a two-mile novice hurdle race at Hexham. His claim against two other riders, Adrian Maguire and Mick Fitzgerald, was dismissed by Holland J. His appeal to the Court of Appeal failed.

[40] In the course of his judgment at first instance, Holland J referred to the case of Smoldon v Whitworth [1996] EWCA Civ 1225; [1997] ELR 249. In that case the claimant sued another player and a referee at a rugby match in which he was badly injured when the scrum collapsed. The claim against the player was dismissed, but the referee was found liable and appealed. Lord Bingham CJ, giving the judgment of the court, recorded that the defendant had invited the judge to say that nothing short of reckless disregard for the claimant’s safety would suffice to establish a breach of the duty which the referee admittedly owed to the player. The judge, however, had adopted the test proposed by the claimant derived from Condon that the duty was to exercise such degree of care as was appropriate in all the circumstances. The court said that the judge was right to accept the plaintiff’s approach. This supports Mr Weir’s submissions as to the appropriate test to be applied in the present case.

[41] Tuckey LJ, in Caldwell, emphasised that Holland J had not said that, in order to succeed, a claimant has to establish recklessness, saying:

“That approach was specifically rejected by this court in Smoldon. As in Smoldon, there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required. I do not think it is helpful to say any more than this in setting the standard of care to be expected in cases of this kind.”

[42] Judge LJ, in his judgment in Caldwell, whilst agreeing with Tuckey LJ, emphasised two particular points: first, it is clear from the authorities that a finding that a jockey has ridden his horse in breach of the rules of racing does not decide the issue of liability in negligence. Second, in the context of sporting contests he considered it right to emphasise the distinction to be drawn between conduct which is properly to be characterised as negligent, and thus sounding in damages, and errors of judgment, oversights or lapses of attention of which any reasonable jockey may be guilty in the hurly burly of a race.

[43] Those are both points which are highly pertinent in the context of the present case. Ms King would not be liable simply because she had effected a tackle which was illegal, or even dangerous, within the Laws of Rugby: the fact that the tackle is illegal for the purposes of the Laws of Rugby is simply one of the factors to be taken into account in deciding whether the defendant’s conduct was negligent because she had failed to exercise such degree of care as was appropriate in all the circumstances. As to the second point, as I have mentioned (see above at para 34), the defendant’s case was not that this was an error of judgment and it remains to be considered whether, in the light of the concessions made by Mr Spreadbury, a defence can be mounted on that basis given that the defendant’s principal defence is no longer viable.

[44] Finally, I turn to the decision of the Court of Appeal in Blake v Galloway [2004] 1 WLR 2844, which concerned horseplay between 15-year-old boys who were throwing twigs and pieces of bark chipping at each other. The claimant picked up a piece of bark chipping and threw it at the defendant, who then picked it up and threw it back. Unfortunately, it struck the claimant in the right eye, causing a significant injury. The judge at first instance found the defendant liable, but Court of Appeal allowed the defendant’s appeal. The judgment of the court was given by Dyson LJ (as he then was). Having referred to the authorities including Wooldridge, Condon and Caldwell, Dyson LJ first defined the characteristics of the game in which the parties were participating as:

“informal play which was being conducted in accordance with certain tacitly agreed understandings or conventions … [namely] that the objects that were being thrown were restricted to twigs, pieces of bark or other similar relatively harmless material that happened to be lying around on the ground; they were being thrown in the general direction of the participants in a somewhat random fashion and not being aimed at any particular parts of their bodies; and they were being thrown in a good-natured way, without any intention of causing harm. The nature of the object and the force with which they were being thrown were such that the risk of injury (almost certainly limited to injury to the face) was very small. There was no expectation that skill or judgment would be exercised, any more than there would be by participants in a snowballing fight.”

In those circumstances, and given those characteristics of the game, the court held that there is a breach of the duty of care owed by participant A to participant B “only where A’s conduct amounts to recklessness or a very high degree of carelessness”. The court found that the defendant’s actions did not reach this high standard and that what had happened was “an unfortunate accident, and no more”.

[45] For the claimant, Mr Weir KC submitted that the court should not follow and adopt the approach of the Court of Appeal in Blake’s case but should prefer the test derived from Condon, namely that a defendant has a duty “to exercise such degree of care as was appropriate in all the circumstances”. However, I do not see that there is necessarily a conflict between the Condon test and the decision and reasoning in Blake’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.

[46] For the claimant, Mr Weir KC relied, unsurprisingly, on the concessions made by Mr Spreadbury that the tackle executed by the defendant was dangerous by reference to the mechanics of the tackle and he submitted that, in this context, the distinction between a tackle being dangerous and the defendant being legally negligent is “paper thin”.

[47] In Blake v Galloway, Dyson LJ had set out what were the relevant characteristics of the game in which the participants were engaging for the purposes of assessing liability and what was the appropriate degree of care (see para 44 above) and therefore, at the court’s invitation, Mr Weir set out what he submitted were the relevant characteristics or circumstances by which the appropriate degree of care should be assessed in the present case. These were, he submitted:

(i) The characteristics of the defendant: she was big and heavy (weighing over 16 stone), a dominant tackler who was able to use her size and weight to drive other players back and down into the ground and she was the captain of the team, the player to whom the other members of the team looked up and who set the tone—she had previously played at a much higher level;

(ii) The level of the game and the (in)experience of many of the players: both sides were fielding novice players who were learning the game and for whom this was their first competitive game in what was only a developmental league, and who had only played a handful of games before: this applied to the claimant.

[48] Mr Weir submitted that the court should make findings concerning the defendant’s conduct both generally and in the two matches against the Sirens, and take those findings into account in assessing the injuring tackle. He commended to the court the evidence called on behalf of the claimant, and in particular the evidence of the claimant and Miss Leicester. He submitted that the court should find that the Bracknell players in general, and the defendant in particular, engaged in “trash talk” with a lot of swearing on the pitch and calling the Sirens players cunts, and that the defendant was overly aggressive, whacking Ms Cook on the head in the first game, causing a broken arm in that match and driving Miss Leicester into the ground (Incident 5) in the second match. He submitted that the defendant made a “call to arms” that the Bracknell players should “fucking smash the no 7”, that she adopted intimidatory tactics and became frustrated and angry when these were ineffective, culminating in her humiliating experience when she was winded in the course of tackling the claimant, leading to her saying: “that fucking no 7, I’m going to break her.”

…

[58] I find that the injury occurred against the following background and in the following circumstances:

(i) 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;

(ii) However, even in the “friendly” match between the sides on 8 May 2017, Bracknell played the game in an inappropriately aggressive and intimidatory 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 through into the game on 8 October 2017;

(iii) The inappropriate approach of the defendant in the first match led to a Sirens player (Keeley) breaking her arm, Claire Cook sustaining a head injury and Sarah-Jane Garside getting punched;

(iv) In the match on 8 October 2017, as Miss Leicester said, the two sides were playing very different games: the Bracknell players, generally much bigger, relied on their size and their aggression whereas Sirens relied on their speed. As the game slipped away from Bracknell, the Bracknell players upped their rough tactics, which included the defendant driving Miss Leicester to the ground well after the ball had gone, in an “off the ball” incident: I agree with Mr Morrison’s assessment of this incident as set out in para 11 above;

(v) 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;

(vi) This culminated in the incident at 63:02 minutes into the video recording (and therefore towards the end of this 60 minute match) when, after tackling the claimant, the defendant succeeded in winding herself: whilst the defendant was being treated, the Sirens players were celebrating. They may well have been celebrating the fact that they had played so well and the match was effectively won (the score was 14–0) but it could have been interpreted by the Bracknell players as celebrating the injury to their captain and her ultimate humiliation in sustaining an injury from her own tackle;

(vii) I have no doubt that the defendant did, as the claimant said, utter the words: “That fucking number 7, I’m going to break her.” Thereafter, she was looking for an opportunity to get her revenge on the claimant: the red mist had metaphorically descended over the defendant’s eyes;

(viii) That opportunity came about three minutes later when, after a 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 about to occur;

(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;

(xii) Consistently with the above, despite the claimant lying prostrate and obviously injured, the defendant walked way 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, as described and advocated by Mr Morrison in his evidence.

[59] I agree with, and adopt, Mr Morrison’s description of the tackle set out at para 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 para 33 above.

[60] 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. 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 para 44 above. Indeed, a requirement to establish recklessness was expressly rejected and disapproved by the Court of Appeal in Smoldon v Whitworth. 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.

[61] 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 para 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 para 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.

[62] 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.

(emphasis added)

It is submitted his Honour’s legal analysis – and the outcome – reflects the position in Australia: Johnston v Frazer (1990) 21 NSWLR 89 at 93-94. As Chesterman J observed in Pollard v Trude [2008] QSC 119 (at [18]):

The law which imposes a general duty of care on those whose activities might cause harm to others applies to participants in sporting activities, although the application of the law and the imposition of the duty is affected by the circumstances of the activity. No separate or different duty of care applies to those who take part in sporting or recreational pursuits. The test for the duty and its breach is what would the reasonable man in the particular situation have foreseen and done. See Johnston v Frazer (1990) 21 NSW LR 89 at 94. If there are hazards associated with a particular activity which are inherent in it participants will be taken to have consented to the risk of the harm from those inherent dangers. See Rootes v Shelton (1967) 116 CLR 383.