Clark v Elbanna [2025] EWCA Civ 776

In this case the Court of Appeal confirmed that the right test for establishing liability for injuries suffered in sporting events is negligence and not recklessness. The trial judge’s finding that the Defendant had been reckless, however, encompassed a finding that the Defendant had been negligent.

On 7th October 2017 the Claimant (a prop forward) and Defendant (an open side flanker) were taking part in an amateur rugby match which was being played under the World Rugby Laws of the Game. Following half time and as the game restarted the Defendant ran to chase the ball and collided with the Claimant causing him to suffer a serious spinal injury at the C5/C6 level.

There was a video of the game which was of considerable assistance to the judges in the case.

The trial judge had made detailed finding of fact based upon the video evidence with assistance from the expert evidence. In summary, the judge found that after kick-off the Defendant was on the 15 metre line running at speed directly at the Claimant who was also standing on or next to the same 15 metre line. With four or five strides to go the Claimant was directly in the Defendant’s path with his back to the Defendant. To avoid a collision with the Claimant the Defendant had to reduce his speed or alter his line. He did neither. He made no attempt to slow down, deviate away from the Claimant or to soften the contact. He had more than enough time to do any of these things which would have entirely avoided the collision or would have moderated it so that the collision would not have been so forceful. The Claimant had no opportunity to prepare or brace himself for the impact.

Law 10.4 of the laws of rugby had been agreed at the trial to be the most relevant rule. It says that “except in a scrum, ruck or maul a player who is not in possession of the ball must not hold, push or obstruct an opponent not carrying the ball.”

In the Particulars of Claim the legal basis of the claim was pleaded in negligence, but the collision was described as an act by the Defendant of “reckless disregard for the safety of the Claimant” and when he ran into the Claimant it was said that he was acting in a “negligent, unnecessary, reckless and dangerous manner”.

The trial judge having made the findings of fact set out above said, “Whether or not the collision was intentional, to have run directly at the Claimant at full speed and to have collided with him in the manner in which the Defendant did was reckless. It amounted to playing an opponent without the ball in contravention of the laws and courted the risk of injury, a risk which eventuated with catastrophic consequences for the Claimant. In the circumstances I conclude that liability has been made out.”

The Defendant was given permission to appeal on limited grounds. They focused on the test to be applied in respect of the Defendant’s alleged recklessness; the adequacy of the judge’s reasons in reaching his conclusions; the relevant legal test when determining breach of duty in a sporting context and the judge’s conclusion that the appellant was reckless given the circumstances of the collision namely a game of rugby. Permission to appeal the judge’s findings of fact was refused.

The Claimant served a respondent’s notice which sought to uphold the judge’s order upon different or additional grounds. Firstly, in the sporting context within the law of negligence it said that the legal test is whether the Defendant failed to exercise such care as was appropriate. That test had been satisfied by the judge’s finding that the Defendant was reckless which was a higher, more stringent standard. Secondly, when the evidence before the judge was examined it was clear that the Defendant had been negligent. 

At the outset of the hearing the Court of Appeal asked the Defendant’s counsel about the issues raised in the respondent’s notice. Having heard his responses, the Court stated that it was satisfied that the judge’s finding that the Defendant was reckless encompassed a finding that the Defendant was negligent to a degree which distinguished his conduct from a momentary error of judgement. Further the court stated that it was not persuaded that such a finding of negligence was wrong. In those circumstances no useful purpose would be served by the court embarking upon an analysis of the law of recklessness. The Court then gave reasons for upholding the respondent’s notice.

In Condon v Basi [1985] 1 WLR 866 a claim was brought by the Plaintiff for leg injuries he suffered in a football match as a result of a foul tackle by the Defendant. Sir John Donaldson MR accepted the decision of the High Court of Australia in Rootes v Shelton [1968] A.L.R. 33 and preferred the approach of Kitto J who said:

“…. 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 plaintiff's 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.”

Sir John Donaldson said the standard of care was objective, “but objective in a different set of circumstances. Thus there will of course be a higher degree of care required of a player in a First Division football match than of a player in a local league football match.”   

In Smoldon v Whitworth [1996] EWCA Civ 1225; [1997] ELR 249 a rugby player brought a claim against the referee of the match following the collapse of a scrum in which the player suffered catastrophic injuries. Lord Bingham CJ, giving the judgment of the court stated at page 256: 

“The level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance. Full account must be taken of the factual context in which a referee exercises his functions, and he could not be properly held liable for errors of judgment, oversights or lapses of which any referee might be guilty in the context of a fast−moving and vigorous contest. The threshold of liability is a high one. It will not easily be crossed…”

In Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054, the parties were professional jockeys in a two mile novice hurdle race.  The court accepted and applied the principles set out in Condon and Smoldon.  At para 23 Tuckey LJ rejected a possible contention that a claimant in a case of injury on the sports field has to establish recklessness.  He stated that such an approach was specifically rejected in Smoldon and continued:

“…. 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.”

In Czernuszka v King [2023] EWHC 380 (KB) Martin Spencer J addressed the issue of the duty of care in a competitive sport in which the female claimant and the female defendant were playing in opposing rugby teams comprising novice and experienced players.  The defendant tackled the claimant when the latter was bending down, was not in possession of the ball and was in a vulnerable position.  As a result of the defendant's tackle, the claimant suffered serious spinal injury.  Martin Spencer J considered and followed the relevant authorities and noted at para 60 that a requirement to establish recklessness was expressly rejected and disapproved by the Court of Appeal in Smoldon.

The Court of Appeal said that what the judge did was to apply the higher and more stringent test namely that the defendant was reckless.  Such a finding was unnecessary in order to establish negligence.  Such a finding properly made would encompass a finding of negligence and on the facts of this case, it did.  There was cogent evidence before the judge which provided a sound basis for his findings of fact.  This was not an error of judgment or momentary carelessness by the Defendant.  The findings of fact and the conclusions drawn from them by the judge provided the basis, in fact and in law, for a conclusion that in colliding with the Claimant the Defendant failed to exercise such a degree of care as was appropriate.  Put shortly, the defendant was negligent. That being so, the Defendant’s appeal was dismissed.

30th Jul 2025

Adrian Higgins

Call 1990