Megan Griffiths of 12KBW updates practitioners on the Court of Appeal’s decision in Elbanna v Clark [2025] EWCA Civ 223 which upheld the High Court’s decision that recklessness surpasses a negligence standard.
Background
The Court of Appeal has swiftly dismissed the Defendant’s appeal against the finding of liability in Elbanna v Clark [2025] EWCA Civ 223. The claim had been brought in negligence following a collision between two opposing players in an amateur rugby match, the Defendant having run into the Claimant at speed while attempting to catch the restart kick with his eyes on the ball in the air. The Claimant suffered serious spinal injuries as a result of their collision. See our earlier blog on the High Court’s first instance decision for a more detailed summary of the factual and legal findings at trial.
Judgment in the Court of Appeal
This is the first time that the Court of Appeal has considered the thresholds of recklessness and negligence in competitive sport since a recent spate of claims before the High Court. In Tylicki v Gibbons [2021] EWHC 3470 (QB) the Defendant jockey’s movements in a race causing a collision were found to be reckless giving rise to liability in negligence; in Czernuska v King [2023] EWHC 380 (KB) the same was found of a tackle in a rugby match; and in Fulham Football Club v Jones [2022] EWHC 1108 (QB) the Defendant successfully appealed against the trial judge’s imposition of recklessness as the requisite standard of care for negligence as an error in law. See our earlier blog post on those three decisions here.
The point made clear beyond doubt by the Court of Appeal in Elbanna is that a proper finding of recklessness (which is not a cause of action) necessarily encompasses a finding of negligence. This comparative analysis of negligence and recklessness is consistent with authorities including Smoldon [1996] EWCA Civ 1225 and Caldwell [2001] EWCA Civ 1054. “To describe a person in a sporting context as being reckless is to apply a higher and more stringent test [than negligence]. In such a context, a finding properly made that a player was reckless, will encompass a finding of negligence.” Davies LJ at [24] The Court of Appeal considered that whilst it would have been helpful if the trial judge in Elbanna had specifically referred to finding negligence, he had properly considered and reached the conclusion that the Defendant’s conduct was reckless. Thus a specific finding of negligence was not necessary.
The Court of Appeal recounted the many findings at first instance that showed the finding of recklessness was “properly made” in Elbanna with particular reliance on the video and expert evidence, as discussed in more detail in our previous blog post. At the heart was the finding of running at full speed directly into the Claimant which did not include (or need to include) and findings as to the Defendant’s intention [27].
Comment
Practical takeaways from Elbanna as a whole, including the undisturbed analysis and findings at first instance, are to:
- Look for footage of the tackle, whether from professional cameras, coaching staff or spectators, to allow the parties and the court to make detailed findings of fact based on objective and reliable evidence.
- Instruct an expert experienced in the laws of the game at the relevant level of play, which is relevant to the standard of care required.
- When pursuing or defending a case ensure that recklessness and negligence are the “right” way around: recklessness is not required for negligence but, if established, negligence will follow.
Megan Griffiths is in 12KBW’s sports practice group.
