Rugby Football Union - Sports Injury

Sports Injury - Is AnyoneTo Blame?

by By Philip Tracey/Tom

Some 490,000 people take part in rugby every weekend. This is for eight months a year. 3036 schools are affiliated to the ERFSU. 1958 clubs are affiliated to the RFU. Approximately 45 very serious injuries from clubs and schools are reported each season.

Such injuries can occur for a variety of reasons and some, if not all, are simply tragic accidents. Unfortunately it is a harsh reality that in today’s society there is a likelihood that a serious injury on the sports field can result in a legal claim being made against the referee, the players, the clubs and/or schools involved. The number of claims which have been brought arising out of the sporting arena has increased in recent years. For the game of rugby perhaps the most important was the decision of Smoldon v Whitworth & Nolan Court of Appeal 1996. In this case the Court of Appeal accepted and found that a referee owes a duty of care to the players and, in broad terms, the standard of care is what is reasonable in all the circumstances.

Since the case of Smoldon there have been a number of claims which have been successfully defended on behalf of referees. However these cases serve to highlight not just the difficult position of the referee but potential difficulties for all those involved in playing the game of rugby.

The referee of a rugby match has a difficult role. The refereeing of a scrum is probably the hardest aspect of the job. The scrum (particularly the front row element) is often described as a “game within a game”. The aim of the two packs is to physically dominate each other by fair means (or unfair means if the referee is not looking). Most of those who play in the front row, if they are being frank, will admit that it is relatively easy to “hoodwink” the referee as to what precisely is going on in the front row.

Scrums can be dangerous; the referees know it and the players know it. Scrums can collapse for a variety of reasons, either through foul play, or when there has been no foul play, due to the pitch conditions, one pack being stronger than the other, players losing their grip or binding. Fortunately very serious injuries through scrummaging have declined over the past five years.

With sporting injuries claims, there is often a stark conflict between the evidence presented on behalf of the Claimant and the evidence presented on behalf of the Defendant. The evidence generally lines up along partisan lines. The Claimant’s team-mates all support the Claimant’s version of events, and the opposing team generally supports the referee. However, even witnesses called on behalf of one party can give startlingly different views. That is not to say that anyone is deliberately telling lies, it simply highlights the fact that the game is very fast moving and the witnesses are seeing the same incident from different positions of the field and from different angles. This makes the task of a Trial Judge immensely difficult. Formal witness statements often are not taken until 2, 3 or 4 years after the event and the Trial is heard 5 or 6 years after the event. Expert evidence, although used, is often of little assistance because the experts give their views based on assumptions of fact. The Judge must first give a finding on those facts before their assumptions can be borne out. If problems can materialise the day after, how can a Judge determine the issues 5 or 6 years after the event?

Given those circumstances, a Judge will look for any material assistance and, in particular, any contemporaneous records. Whilst it is of major concern when any serious injury occurs and of course understandably thoughts immediately turn to the injured individual to ensure that he or she obtains proper care, it is also important to maintain appropriate records which may become crucial in any subsequent court action. Where a significant injury has taken place within a match, details are needed of the incident, the name of the injured player, the team captains’ names, touch judges, and if possible names of any witnesses. The report should be retained by the referee, a copy given to the Society Secretary, who will forward this to the RFU Sports Injuries Administrator.

This is a more positive approach and does not require the referee, who may be traumatised by the events on the field, to become a detective in obtaining witness statements and then be responsible for circulating the info to the interested parties.

Additionally, it does not imply, nor would we wish to, that a report has to be completed after every match.

As a word of warning, given the roles of the captains and the coaches in rugby, if criticism is being made of the conduct of the referee and match officials regarding conditions or handling of the game, then the same criticisms may be made against the captains and coaches of the club. This is an important feature to bear in mind.

Philip Tracey is a partner at national law firm Beachcroft Wansbroughs. Tom Baker is an Assistant Solicitor. They have often represented referees for a number of years in claims arising out of injuries on the sports field.