In this article Megan Griffiths and Spencer Turner consider the recent High Court decision of Elbanna v Clark [2024] EWHC 627 (KB), in which a rugby tackle was found to have been negligent in the context of an amateur rugby match.

Introduction

Elbanna v Clark [2024] EWHC 627 (KB) is the latest in the line of recent High Court authorities concerning the circumstances in which the duty of care owed between participants in sport can be breached. Like Tylicki, Fulham and Czernuska it is a liability decision which ultimately turns on its own facts. Our blog post on those three decisions can be found here. Elbanna provides a helpful summary of the legal principles which are relevant to such claims.

In Elbanna, after a preliminary issue trial on liability the High Court found that the Defendant was liable in negligence for the way in which he approached and collided with the Claimant, causing him serious personal injury, in an amateur RFU game.

Facts

The core facts in Elbanna were as follows:

  • The Claimant and the Defendant were playing for their respective teams in an amateur rugby match. Both were experienced players.
  • The game was governed by RFU laws, set by the governing body, World Rugby.
  • The game was filmed for referee training purposes. The recording showed the build-up to the collision and the collision itself.
  • The second half began with the Defendant’s team kicking off. The Defendant started just behind the halfway line and the Claimant was his nearest opposing player. The Defendant’s intention was to run forwards to get to the ball after it had been kicked. The ball was high in the air and the Claimant was more or less stationary with his back to the Defendant and his eyes on the ball.
  • The Defendant ran forward, gathering speed over about 12 metres, in a straight line, towards the Claimant. The ball was still high in the air. The Defendant’s body visibly braced for impact shortly before both he and the Claimant moved slightly to the right. He then collided with the Claimant and force of the impact threw the Claimant forwards. The Claimant did not brace himself at all as he did not and could not see the Defendant running towards him, given where he was looking.
  • On the pitch the Claimant’s team captain told the referee it was a “cheap shot in the back, just came in for no reason”. The referee said he didn’t see the tackle and that he had been looking at the ball. No foul was given. The game continued on another pitch whilst the Claimant waited for medical assistance.
  • A disciplinary investigation concluded that there was no incontrovertible evidence or grounds to rule that the collision was dangerous and or contrary to good sportsmanship. An appeal against that decision was unsuccessful on the grounds that the decision was not unreasonable.

Finding

The Court’s assessment of liability was as follows:

  • The Claimant contended that the Defendant recklessly or negligently breached his duty of care by running towards and into the Claimant as he did. It was suggested in cross examination that the collision was deliberate.
  • The Defendant contended that he had tried to avoid colliding with the Claimant, that if the Claimant hadn’t moved there would have been no collision, that he did not intend to collide with him.
  • The court found that the Defendant could have avoided, or at least minimised the force of the collision to avoid causing the Claimant injury. The court did not make a finding as to the Defendant’s intention but concluded it was reckless to have run directly into the Claimant at full speed. Therefore the Claimant succeeded on liability. In citing Czernuzka v King [2023] EWHC 380 (KB) and Condon v Basi [1985] 1 WLR 866, the Court noted that the requirement to establish recklessness is not required to found a breach of duty. The test is whether the Defendant failed to exercise such degree of care as was appropriate in all of the circumstances. Ultimately in Elbanna, the Court did find that the Defendant had been reckless which was clearly sufficient to find a breach of duty.
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Comment

There are several key practical points to note from the judgment:

  • The importance of video footage as an evidential tool: The footage of the build-up to the collision and the collision was, unsurprisingly, heavily relied upon by the court and the experts. It is almost always possible to get useful footage in professional games and training (whether for broadcasting or training purposes), and increasingly possible in serious amateur games too. The first port of call in any negligence in play case should be finding out what footage is available.
  • A breach of the rules of the game and breach of a duty of care are not the same: The fact that the on-pitch referee had not given a foul did not significantly factor into the Court’s consideration. In Rootes v Shelton [1968] ALR33, in the High Court of Australia, which was cited in Condon v Basi, the Court of Appeal noted Kitto J’s dicta that “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.” In the same vein, a breach of the rules of the game does not necessarily mean that a finding of negligence will follow in a civil claim, as Lane J remarked in Fulham v Jones [2022] EWHC 1108 “the Rules of the Game of Association Football have not been drafted with civil liability in mind. Their drafters were simply not concerned with whether, at any point in the hierarchy of sanctions, there is a correlation with the laws of negligence.”
  • The need for expert evidence: Both sides had experts on the laws of the game. The Claimant’s submission that the Defendant’s expert, Mr Cuthbertson, was conflicted by the fact of a previous and ongoing largely administrative connection with the RFU, was rejected. The RFU was not a party to the proceedings, there was no evidence of who was insuring or funding the Defendant’s case. To the contrary, Mr Cuthbertson’s experience within the RFU added to his expertise as an expert, although ultimately Mr Debney’s evidence was preferred where their opinions differed. In any event, the Court was clearly assisted by the experts who were best placed to explain the laws of the game to the Court and to put them in context.

Recent judgments appear to indicate that claims arising out of personal injury suffered during the course of playing sport are more readily being litigated. This decision is a helpful reminder of the factors that the court will take into account when determining liability. It is also a reminder of the need for those competing in sport to ensure that they have appropriate insurance arrangements in the event of such a claim arising. 

Spencer Turner and Megan Griffiths are part of chambers’ sports practice group. The judgment in Elbanna can be found here.