ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
The Hon. Mr Justice Morland
Royal Courts of Justice
Strand,
London, WC2A 2LL
B e f o r e :
LORD PHILLIPS OF WORTH MATRAVERS, MR
LORD JUSTICE CLARKE
and
LORD JUSTICE SEDLEY
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RICHARD VOWLES |
Respondent |
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- and - |
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DAVID EVANS |
First Appellant |
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- and - |
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THE WELSH RUGBY UNION LIMITED |
Second Appellant |
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr Ian Murphy, QC and Mr Jonathan Bellamy (instructed by J. Peter Davies & Co for the Respondent)
Mr John Leighton Williams, QC and Mr Gregory Treverton-Jones, QC (instructed by Morgan Cole for the 1st and 2nd Appellants)
Judgment
Lord Phillips, MR :
This is the judgment of the Court
The respondent, Mr Vowles, is confined to a wheelchair as a result of an injury sustained when playing rugby. The first appellant, Mr Evans, was the referee of the match in which Mr Vowles sustained this injury. The second defendant, the Welsh Rugby Union Limited (‘WRU’), had appointed Mr Evans as the referee of the match. They accept that, if Mr Evans is liable for Mr Vowles’ injury, they also are liable under the principle of vicarious liability. On 13 December 2002 Morland J. gave judgment in favour of Mr Vowles against Mr Evans and the WRU. He held (i) that Mr Evans had owed Mr Vowles a duty of care, (ii) that he had been in breach of that duty and (iii) that his breach had been a cause of Mr Vowles’ injury. The appellants challenge each of these findings.
Uncontentious facts
Mr Vowles sustained his injury when playing as hooker for the Llanharan Rugby Football Club 2nd XV in a ‘local Derby’ against the Tondu Rugby Football Club 2nd XV on 17 January 1998. The 1st XVs of the two clubs were similarly engaged. The match between the 2nd XVs was an amateur game and Mr Evans was refereeing in an amateur capacity.
Because of last minute demands by the 1st XV the Llanharan 2nd XV coach had been unable to find a specialist front row forward to sit on the bench ready to come on as a replacement.
There had been a lot of rain before the game and the pitch was boggy. In consequence it was a forwards’ game and there were a large number of set scrums. The match was hard fought, but play was fair. After about twenty minutes of play Tondu’s tight head prop was replaced by a substitute who was both strong and had been trained as a front row forward. This replacement had no adverse effect upon the tight scrummaging.
About ten minutes later the Llanharan opposing loose head prop dislocated his shoulder and had to leave the field. Not only did Llanharan have no trained front row forward on the bench to replace him, they had no-one in the second or back row of their pack who had trained as a front row forward or who had recent or significant experience of playing in the front row.
Mr Evans was aware, or was made aware, that Llanharan did not have a replacement front row forward on the bench. He told their captain that they could provide a replacement from within the scrum or that they could, if they wished, opt for non-contestable scrummages from that point – the choice was theirs. In answer to a question, he added that if they opted for non-contestable scrummages and won the match they would not be entitled to an award of points in the League competition.
Llanharan did not opt for non-contestable scrummages. The leader of their pack, Christopher Jones, who was playing as a flanker, said that he would ‘give it a go’ as front row forward. He had played in that position occasionally a few years earlier and at a lower level. Mr Evans agreed to this course without enquiring of Mr Jones or anyone else about his previous experience.
The game proceeded until injury time was reached. At this point Llanharan were leading by three points to nil, as the result of a converted penalty. Tondu were, however, camped on Llanharan’s line and had the benefit of a five metres scrum. They were aiming for a ‘push-over’ try which, if converted, would enable them to snatch a last minute victory out of defeat. As the two sets of forwards sought to engage, Mr Evans saw that all was not as it should be and blew his whistle. At this point Mr Vowles collapsed, and it was apparent that he had sustained a serious injury. Mr Evans brought the match to an end. An ambulance was called and Mr Vowles was taken to hospital. His injury has left him with permanent incomplete tetraplegia.
The Laws of the Game
The match was being played under the 1997 version of the ‘Laws of the Game’, as issued by the Council of the International Rugby Football Board. The WRU promulgated these Laws. The following are particularly relevant:
“LAW 3. THE NUMBER OF PLAYERS AND THE REPLACEMENT AND SUBSTITUTION OF PLAYERS
(5) Any team must include suitably trained/experienced players as follows:
….
(e) if a team nominates 16, 17 or 18 players it must have four players who can play in front row position.
….
Substituted Players
(9) The replacement of an injured player shall be made only when the ball is dead and with the permission of the referee. The referee should not permit a player to resume until the ball is dead.
(10) Up to two substitutes of front row players and up to four substitutes of the other players may be made for any reason only when the ball is dead and with the permission of the referee.
….
Special Circumstances
(12) In the event of a front row forward being ordered off, the referee, in the interests of safety, will confer with the captain of his team to determine whether another player is suitably trained/experienced to take his position; if not the captain shall nominate one other forward to leave the playing area and the referee will permit a substitute front row forward to replace him. This may take place immediately or after another player has been tried in the position
When there is no other front row forward available due to a sequence of players ordered off or injured or both, then the game will continue with non contestable scrummages which are the same as normal scrummages except that:
- there is no contest for the ball
- the team putting in the ball must win it
- neither team is permitted to push
….
LAW 6. REFEREE AND TOUCH JUDGES
6.A Referee
(1) There shall be a referee for every match. He shall be appointed by or under the authority of the Union or, in case no such authorised referee has been appointed, a referee may be mutually agreed upon between the teams or, failing such agreement, he shall be appointed by the home team.
….
(3) The referee shall keep the time and the score, and he must in every match apply fairly the Laws of the Game without any variation of omission,…
Notes:
(iii) The referee has power to declare no-side before time has expired if, in his opinion, the full-time cannot for any reason be played or continuance of play would be dangerous.
….
(4) He must not give any instruction or advice to either team prior to the match. During the match he must not consult with anyone except only
(a) either or both touch judges on a point of fact relevant to their duties, or on matters relating to Law 26(3); or
(b) in regard to time.
(5) During a match, the referee is the sole judge of fact and of law. All his decisions are binding on the players. …”
Law 20 deals with the scrummage. Its provisions run to 12 pages. Many of these are concerned with or particularly relevant to the safety of the players. These include:
“(2) ….
Before commencing engagement, each front row must be in a crouched position with heads and shoulders no lower than their hips and so that they are not more than one arm’s length from the opponents’ shoulders.
In the interest of safety, each front row should engage in the sequence of crouch, then pause and only engage on the call ‘Engage’ given by the referee.
(3) It is dangerous play for a front row to form down some distance from its opponents and rush against them.
Note: (v) The referee should not call the front rows to engage until the ball is in the hands of the player putting in the ball and is available to be put in immediately. This call is not a command, but an indication that the front rows may engage when ready.
….
(ix) In the event of the scrummage collapsing the referee should whistle immediately so that players do not continue to push. The referee should also whistle immediately if any player in the scrummage is lifted off his feet or is forced upwards out of the scrummage.
Binding of Players
(6)(a) The players of each front row shall bind firmly and continuously while the scrummage is forming, while the ball is being put in and while it is in the scrummage.
(b) The hooker may bind either over or under the arms of his props but, in either case, he must bind firmly around their bodies at or below the level of the armpits. The props must bind the hooker similarly. The hooker must not be supported so that he is not carrying any weight on either foot.
(c) The outside (loose-head) prop must either (i) bind his opposing (tight-head) prop with his left arm inside the right arm of his opponent, or (ii) place his left hand or forearm on his left thigh.
….
(14) When the ball has touched the ground, any foot of any player in either front row may be used in an attempt to gain possession of the ball subject to the following:
players in the front row must not at any time during the scrummage wilfully:
(a) raise both feet off the ground at the same time; or
(b) adopt a position or take any action, by twisting or lowering the body or by pulling on an opponent’s dress, which is likely to cause the scrummage to collapse; or
(c) lift an opponent off his feet or force him upwards out of the scrummage;”
Was there a duty of care?
The parties have proceeded, rightly in our view, on the premise that the test of duty applied by the House of Lords in Caparo Plc. v Dickman [1990] 2 AC 605 must be applied. Mr John Leighton Williams QC, for the appellants, conceded that (i) the relationship between Mr Vowles and Mr Evans was sufficiently proximate to satisfy that element of the test and (ii) that it was reasonably foreseeable that, if Mr Evans failed to exercise reasonable care in refereeing the match, injury to Mr Vowles might result. Before the Judge, as before us, the debate centred on the question of whether it was ‘fair, just and reasonable’ to impose on an amateur referee a duty of care towards the players in the game refereed. Morland J’s conclusions in relation to this issue appear in the following passages of his judgment:
“21. I do not consider it logical to draw a distinction between amateur and professional rugby. In the professional game a front row forward is likely to be better trained, fitter and have more specialist techniques than his amateur counterpart. In the professional game teams will have on the bench or in the team sufficient substitutes to replace a front row forward who is injured or sent off. I consider that the risk of very serious spinal and cervical injuries to front row forwards is more likely to occur in the amateur rather than the professional game albeit that such occurrences are extremely infrequent.
….
23. In my judgment when rugby is funded not only by gate receipts but also by lucrative television contracts I can see no reason why the Welsh Rugby Union should not insure itself and its referees against claims and the risk of a finding of a breach of duty of care by a referee where “the threshold of liability is a high one which will not easily be crossed”. Amateur rugby players will be young men mostly with very limited income. Insurance cover for referees would be a cost spread across the whole game.
….
42. In my judgment as a matter of policy it is just and reasonable that the law should impose upon an amateur referee of an amateur rugby match a duty of care towards the safety of the players. Such a duty would be breached if the claimant established that the referee failed to take reasonable care for the safety of the players by sensible and appropriate application of the laws of rugby having regard to the context and circumstances of the game. I consider that the imposition of such a duty would be consistent with the spirit of the laws of rugby. I do not consider that the enjoyment of the game by players or spectators would be lessened. Rugby is an important part of Welsh culture and I am very mindful of its future development which in my judgment will in no way be harmed by the imposition of such a duty.”
Mr Leighton Williams criticised the observations in paragraph 23 of the judgment on the basis that they were not founded on any evidence. He submitted that it was public knowledge that the WRU was heavily in debt and that public liability insurers were considering excluding cover for sporting injuries. It seems to us that, in making these submissions, Mr Leighton Williams was inviting us to fall into the very error for which he sought to criticise the Judge. His submissions were not supported by evidence and we cannot take judicial notice of the finances of the WRU nor of the intentions of public liability insurers. We accept that the availability of insurance, both to players against the risk of injury and to referees against the risk of third party liability could bear on the policy question of whether it is fair, just and reasonable to impose a duty of care on referees. These were matters explored in Van Oppen v Clerk to the Bedford Charity Trustees [1990] 1 WLR 235. They were not explored before the Judge or before us. In these circumstances we consider that it was open to the Judge to proceed on the basis that it is possible for referees, or at least the WRU, to obtain insurance cover against third party liability. In the absence of evidence to the contrary, this is a reasonable assumption to make.
More generally, Mr Leighton Williams submitted that, if referees are to be potentially liable in negligence for injuries to players, the supply of those prepared to referee without reward will be in danger of drying up. It is, he submitted, in the public interest that amateur referees should be prepared to referee amateur sports. It is not fair, just or reasonable to expose those prepared to offer their services for nothing to the risk of ruinous legal liability.
Mr Leighton Williams further submitted that there was nothing intrinsically unfair in referees, particularly amateur referees, being exempt from liability in negligence. In his skeleton argument he contended:
“The appellant did not create the risk of injury. Rugby is a dangerous contact sport. It is a test of the physical strengths of the opposing sides and nowhere is this more so than in the scrum where the opposing packs deliberately exert pressure on each other, knowing that force may cause injury but without intending that it will. Physical injury is foreseeable to all the participants, is quite common and over time inevitable. Whether or not an accidental injury is serious in its consequences depends on chance, as in the present case where it resulted from a momentary mistiming. Anyone playing in the front row will know that there is a risk of mistiming on engagement, that mistiming may occur at any time regardless of playing conditions and that serious injury may result. There is nothing a referee can do to avoid that inherent risk save stop the game.”
In support of these submissions Mr Leighton Williams relied upon passages in the judgments of the High Court of Australia in Agar v Hyde [2001] HCA 41; 201 CLR 552. The relevant issue in that case was whether two claimants had sufficiently strong cases to justify exercising a discretion to give permission to serve process out of the jurisdiction. Each claimant had suffered spinal injuries while scrummaging in the course of playing rugby. They sought to recover damages in negligence against members of the International Rugby Football Board for breach of an alleged duty of care so to frame the rules of rugby union football as to reduce the risk of such injuries. The High Court, reversing the decision of the Court of Appeal of New South Wales, held that the members of the Board owed no such duty of care.
We note that Gleeson CJ recorded at p.560 that the Court of Appeal had observed, without reference to authority:
“After all, opposing players can already sue each other for intentionally and negligently inflicted injuries; they can sue the referee for negligent failure to enforce the rules; and the sports administrator that dons the mantle of an occupier assumes well-established duties of care towards players, spectators and (in the case of golf clubs) neighbours. A duty of care is not negated merely because participation in the sport is voluntary.”
Mr Leighton Williams submitted that, in the light of the High Court’s decision, this passage could not stand. We do not agree; indeed, the following passage at p.561 of Gleeson CJ’s judgment might seem to be implicitly approving the passage in question:
“Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity (Rootes v Shelton (1967) 116 CLR 383). That, however, is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care.”
To this extent the case is adverse to Mr Leighton Williams’ submissions, but in the absence of reasoning or reference to authority, the injury that it inflicts is only superficial.
There are passages in Agar v Hyde which lend some support to Mr Leighton Williams’ submission that no duty of care should be imposed on a rugby referee. At p.581, in the judgment of four members of the court, the following observations are made:
“The laws of a game like rugby football differ from norms of conduct enforced by the courts. The application of the rules embodied in the laws of the game in any particular rugby match is, in very important respects, a matter for the skill and judgment of the particular officials who controlled the match. Often enough (and always if the bystander on the touch line is to be believed) those judgments turn on individual and qualitative assessments made by the officials which have to be made instantly, no matter what the speed of play. Should every infraction of the rules be penalised? When should advantage be allowed? Should the game be allowed to flow with as little interruption as possible? What is ‘unduly’ rough play in a body contact sport? What is ‘dangerous’ play? All these and many other judgments must be made by the officials.”
In a concurring judgment Callinan J. observed at p.600:
“Rugby union is notoriously a dangerous game. It is a game, often of quite violent bodily contact. Everyone who plays it is vulnerable. Some positions, such as the front row, are almost equally notoriously more dangerous than others, for example, the three-quarters, especially the wings. The respondents here could not possibly have been ignorant of any of these matters.”
Passages such as these echoed the submissions of Mr Leighton Williams that we have quoted at paragraph 14 above. Yet when the judgments are analysed it is apparent that such passages did not found the reason for allowing the appeal. What weighed with the High Court was the remoteness of the relationship between the individual claimants and the members of the Board. The court was not prepared to find that as a result of their rule-making function the Board owed a duty of care to an indefinite but huge body of people who played rugby football around the world and over whose activities they had no control– see pp.564, 578, 582 and 601, in particular. The contrast between the facts of Agar v Hyde and the present case, which concerns the relationship between a referee and those playing in the game which it is his duty to control, is so marked that we do not consider that Mr Leighton Williams can derive any assistance from the former.
More in point is the decision of this court in Smoldon v Whitworth & Nolan [1997] PIQR p.133. In that case the plaintiff had been playing hooker, aged 17, in a colts game involving young players under the age of 19. He broke his neck when a scrum collapsed. The plaintiff alleged that the second defendant, the referee, owed him a duty of care to enforce the Laws of the Game and to ‘effect control of the match so as to ensure that the players were not exposed to unnecessary risk of injury’. This was admitted in the defence, subject to the following averment as to the standard of care applicable:
“It will be contended that, as a matter of law, the first defendant would be liable to the plaintiff, as a fellow participant in the game, only if an act or acts on his part causing injury were done with the deliberate intention of causing such injury; or were done with or in a reckless disregard for the safety of the person injured. In those premises, it will be contended: that the standard of care itself qualifies or informs the standard of care to be expected of the match referee; and that for a referee to be liable, whether alone or jointly, for such an injury as is mentioned above, he would have had to have shown a deliberate or reckless disregard for the safety of the person injured, in circumstances where, without such deliberate or reckless disregard, he should have intervened and where such intervention would have prevented the occurrence of the injury;…”
Giving the judgment of the court, Lord Bingham CJ rejected this submission. He held at pp.138-9:
“The second defendant accepted that he owed a duty to the plaintiff, so that there was no issue whether any duty of care arose at all or whether any such duty was owed to the plaintiff. The issue of policy (or of what is just and reasonable) which has to be received where these questions arise did not here fall for decision. The only question was what duty was owed. The second defendant feared that if the test proposed by the plaintiff and upheld by the judge were held to be correct, the threshold of liability would be too low and those in the position of the second defendant would be too vulnerable to suits by injured players. We do not accept this fear as well-founded. 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.
There is in our judgment no inconsistency between this conclusion and that reached by the Court of Appeal in Wooldridge v Sumner and Wilks v Cheltenham Cycle Club. In these cases it was recognised that a sporting competitor, properly intent on winning the contest, was (and was entitled to be) all but oblivious of spectators. It therefore followed that he would have to be shown to have very blatantly disregarded the safety of spectators before he could be held to have failed to exercise such care as was reasonable in all the circumstances. The position of a referee vis-à-vis the players is not the same as that of a participant in a contest vis-à-vis a spectator. One of his responsibilities is to safeguard the safety of the players. So although the legal duty is the same in the two cases, the practical content of the duty differs according to the quite different circumstances.
There was a narrow argument concerning the level of skill required of a referee such as the second defendant. In the second defendant’s submission the court should consider whether he had fallen below the level of skill reasonably to be expected of a referee of his grade refereeing an Under 19 Colts match in October 1991. The plaintiff submitted that the level of skill required was determined by the function a referee was performing and not by his grade: accordingly, it was suggested that the level of skill required was that reasonably to be expected of a referee refereeing an Under 19 Colts match in October 1991, irrespective of the grade of the referee. In the present case, this difference of approach is academic since the grade which the second defendant held (C1) was entirely appropriate to the match which he was refereeing. This is not a case of a referee taking charge of a match above his professed level of competence. We prefer the plaintiff’s formulation, but we do not think it matters.”
Mr Leighton Williams made two submissions in relation to this case. First, he submitted that the observations in relation to duty were not binding on us as a duty of care had been conceded. Secondly, he submitted that the case could be distinguished as it involved young players.
As to the second point, we do not consider that the distinction between a colts game and an adults game can affect the answer to the question of whether a referee owes any duty of care to the players. As to the first point, we think that Mr Leighton Williams is correct to submit that the case does not shut out his argument that, as a matter of policy, it is not fair, just and reasonable to impose any duty of care on a referee. It does, however, make it difficult for him to argue that the nature of the sport of rugby is such as to render it perfectly fair to impose no duty of care on a referee. Were this correct we do not see how the court could properly have held that the standard of the duty was more onerous than that conceded by the second defendant. At the end of the day, however, we consider that the answer to the issue of whether Mr Evans owed Mr Vowles a duty of care can be decided without the need to rely upon previous decisions in relation to rugby football.
Rugby football is an inherently dangerous sport. Some of the rules are specifically designed to minimise the inherent dangers. Players are dependant for their safety on the due enforcement of the rules. The role of the referee is to enforce the rules. Where a referee undertakes to perform that role, it seems to us manifestly fair, just and reasonable that the players should be entitled to rely upon the referee to exercise reasonable care in so doing. Rarely if ever does the law absolve from any obligation of care a person whose acts or omissions are manifestly capable of causing physical harm to others in a structured relationship into which they have entered. Mr Leighton Williams has failed to persuade us that there are good reasons for treating rugby football as an exceptional case. A referee of a game of rugby football owes a duty of care to the players.
The standard of care
The standard of care to be expected of a referee must depend upon all the circumstances of the case. One of those circumstances is the nature of the game. As Lord Bingham CJ observed in Smoldon, a referee of a fast moving game cannot reasonably be expected to avoid errors of judgment, oversights or lapses. The threshold of liability must properly be a high one.
In Smoldon there was inconclusive discussion as to whether the level of skill to be expected of a referee depended upon the grade of the referee, or upon the grade of match he was refereeing. The answer to that question did not matter in that case, nor do we think that it matters in this. In Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at p.586 McNair J., in addressing a jury in a clinical negligence action, made a statement of the law which has since been applied repeatedly to any situation in which a person undertakes a task which requires some special skill:
“…where you get the situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. ”
There is scope for argument as to the extent to which the degree of skill to be expected of a referee depends upon the grade of the referee or of the match that he has agreed to referee. In the course of argument it was pointed out that sometimes in the case of amateur sport, the referee fails to turn up, or is injured in the course of the game, and a volunteer referee is called for from the spectators. In such circumstances the volunteer cannot reasonably be expected to show the skill of one who holds himself out as referee, or perhaps even to be fully conversant with the Laws of the Game. That, however, is not this case. Mr Evans played rugby regularly until he retired in 1994. He then went on an intensive WRU refereeing course and refereed ever since. He was on the Welsh Districts Rugby Union list at the time of Mr Vowles’ accident, and in the following year he was promoted to the Welsh Rugby Union list. His qualifications were appropriate for the 2nd Division game that he was refereeing. He could reasonably be expected to be conversant with the Laws of the Game and competent to enforce them. The allegations of breach of duty made against him do not involve any higher standard of skill than this basic competence.
Breach of duty
The issue in relation to breach of duty was and is whether Mr Evans negligently failed to comply with the requirements of Law 3(12). As to the relevant facts, the Judge held that Mr Evans, himself, provided the best source of these. Mr Evans is a solicitor employed by the National Union of Teachers who specialises in personal injury claims, so he was aware of the importance of making an accurate record of events. Immediately after the match he wrote up an ‘aide memoire’ on his match pad, which the Judge held provided the most accurate account of what happened. The material portion reads as follows:
“In approx the 30th minute of the game Llanharan indicated to me that their prop was injured and could not continue. They also indicated to me that they did not have a prop forward replacement. In discussion I explained to them that the decision was theirs. The prop replacement need not be on the bench but could be on the field. It was their decision. I also explained that as far as I was aware if they requested non-contestable scrums as far as league points were concerned they could not be awarded even if they win.
Llanharan opted to try their flanker at prop. He felt comfortable with it. I also explained to Tondu that we should have some sense as regards the scrum. I did not want them to try to put him under undue pressure but appreciated that it was still a contest.”
On 20 January 1998 Mr Evans included a rather fuller account in his Referee’s Report:
“After approximately 32 minutes, the Llanharan loosehead indicated an injury to his shoulder, which I believe was caused in a tackle. Llanharan players stated to me that they did not have a prop on their replacement bench. Accordingly, I conferred with their captain and forwards as to whether another player was suitably trained or experienced to take his position or be tried in that position. In that discussion, I also explained that if they desired they could elect for non-contestable scrummages. I was asked whether the election of non-contestable scrummages would affect the award of league points. I confirmed that to the best of my knowledge league rules stated that points would not be awarded to a side seeking non-contestable scrummages in the event of them winning. Llanharan then opted to try their number 6 in the prop forward position. Before the first scrummage with that player in the front row however, I called aside the Tondu tighthead and their captain. I informed them that I expected common sense to prevail. Although the scrummages remained a contest, I did not expect them to seek to put undue pressure on the player being tried in that position. The game continued. I ensured that I kept special watch on the Llanharan loosehead side. On occasions I stood at his side of the scrummage, even when the put-in was on the other side. I felt that by doing so, the players were aware of my presence and the contest could continue safely.”
The Judge’s conclusion as to the implications of this evidence was set out in paragraph 65 of his judgment:
“65. As I find, the evidence is clear that the first defendant effectively abdicated his responsibility leaving it to Llanharan to decide whether to play non-contested scrums. He made no enquiries of Christopher Jones as to whether he was suitably trained and experienced. He clearly was not. Front row players are particularly vulnerable to injury and potentially serious injury if one of their number lacks the requisite technique and is not suitably trained and experienced. In my judgment the first defendant was in breach of his duty to take reasonable care for the safety of the front row forwards in failing to order non-contested scrums. It was a hard fought forwards match played on a muddy pitch increasing the risk of injury in a set scrum if a front row forward lacked technique. Also in my judgment the coach and captain of Llanharan were wrong in allowing the desire not to forfeit points to override considerations of safety. The decision not to have non-contested scrums was not taken in the heat of the moment during fast moving play. It was taken when play had stopped and after discussion but without any interrogation of Christopher Jones as to his training and experience as a prop by the first defendant.”
Somewhat confusingly, in paragraph 74 of his judgment, the Judge added this:
“Even if the first defendant may have been entitled to give Christopher Jones a trial as loose head prop as law 3(12) seems to envisage, in my judgment he should have kept such a trial under constant review and was negligent in not ordering non-contested scrums long before injury time having regard to the history of repeated and increasingly numerous bad set scrummages.”
Mr Leighton Williams’ submissions on this aspect of the appeal can be summarised as follows:
(1) Law 3(12) is unclear in that (i) the first part of the rule deals only with the position where a player is sent off and not where a player is injured; (ii) the nature of suitable training/experience is not made plain; (iii) the circumstances in which another player may be ‘tried in the position’ are not made plain.
(2) In the circumstances that had arisen, Mr Evans correctly, or reasonably, interpreted and applied the Law as follows: (i) a player could be ‘tried’ in the front row, provided that he was suitably trained or experienced; (ii) a player could be suitably experienced as a result of playing in the scrum in a position other than the front row; (iii) the question of whether Christopher Jones was suitably experienced was one that Mr Evans could properly leave to the Llanharan captain; (iv) Christopher Jones was suitably experienced.
(3) The Judge was wrong to hold (i) that Mr Evans was at fault for not making enquiries of Christopher Jones as to whether he was suitably trained and experienced and (ii) that Christopher Jones was not suitably qualified and experienced.
Had Mr Evans asked the Llanharan captain whether he had anyone suitably trained or experienced to be tried in the front row we do not consider that he could have been criticised for accepting an affirmative answer had one been given. On the contrary, we think that Law 3(12) contemplates that this is something upon which the referee will seek information from the team captain and that such a procedure makes sense. This conclusion is supported by the fact that the most recent version of this Law provides quite specifically that, when a front row player is sent off, the referee must ask the captain ‘whether or not the team has another player on the field of play who is suitably trained to play in the front-row’. Having, however, considered the evidence set out above, as amplified by the transcript of the oral evidence given at the trial, we are satisfied that Mr Evans did not ask the Llanharan captain this question and that, had he done so, the captain, who played at fly-half, would not have been in a position to answer it.
Equally, neither Mr Evans nor the captain asked Christopher Jones the same question, namely whether he was suitably trained or experienced to play in the front row. If he had been asked the only honest answer would have been no and we have no reason to doubt that that is what he would have said, if asked. The true position was that Christopher Jones was not suitably trained or experienced so as to be fit to play safely in the front row. The problem was that he simply said that he would give it a go.
We consider that Mr Leighton Williams was correct to accept that, on a reasonable reading of the Law, Mr Evans could only permit a player to be ‘tried’ in the front row if he had reason to believe that he was suitably trained/experienced. We do not accept, however, that it was reasonable to conclude that the training/experience in question could relate to playing in a position other than the front row of the scrum. Front row play requires special techniques of binding and scrummaging, as the provisions of Law 20 make plain. We think that it is obvious that the training/experience which the Law required related to training for or playing in the front row of the scrum.
The contemporary evidence in Mr Evans’ reports does not suggest that he satisfied himself that Christopher Jones was suitably trained/experienced to be tried in the front row, whatever the precise nature of that training/experience might be. On the contrary, that evidence indicates that Mr Evans left it to the Llanharan captain to elect whether to proceed with non-contestable scrummages or to try out his flanker as a front row prop. On no reading of the Law was it proper to offer him that option. We consider that the Judge rightly found that Mr Evans abdicated the responsibility which was his of deciding whether the situation had been reached where it was mandatory to insist upon non-contestable scrummages. This constituted a breach of his duty to exercise reasonable care for the safety of the players.
We stress that in reaching that conclusion we have well in mind that, as Mr Murphy correctly submitted, this is a case in which the decision of the referee, which has been under scrutiny and which we have concluded amounted to a breach of duty, was taken while play was stopped and there was time to give considered thought to it. Very different considerations would be likely to apply in a case in which it was alleged that the referee was negligent because of a decision made during play.
Causation
Mr Vowles sustained his injury because the two front rows failed to engage cleanly in what was in any event going to be the last set scrum of the match. The Judge summarised the position succinctly in paragraph 14 of his judgment:
“It was to have been the final set scrum before no side. The front rows failed to engage properly. The first defendant blew his whistle. As the scrum parted, the claimant collapsed to the ground.”
He continued:
“The crucial factual questions which I have to determine are how and why the two front rows failed to engage properly and whether the claimant has established on the balance of probabilities that Jones’ lack of prop technique was a material cause of the failure to engage properly.”
It is often difficult to identify the precise cause of a failure to engage cleanly in the set scrum. The Judge set out some of the evidence that related to this. Mr Evans’ ‘aide memoire’ gave the following account:
“As the players engaged the Llanharan front row appeared a little late to get down. I sought to reset but the hooker collapsed with what looked to be a serious injury.”
In his match report he said:
“Again I held the packs apart until they were ready. Unfortunately, the scrum again did not go down properly and I whistled immediately. As the front row separated, the Llanharan hooker sank to the floor between his 2 props.”
Mr Vowles himself said that he struck his head on the opposite hooker’s shoulder. He described how this happened:
“I was pushed into engagement whether I liked it or not. I could have stood up but I was in a crouch position, bent up already. It was safer for me to go down, I think. I was being pulled down by the props.”
In the light of this evidence the Judge made the following finding:
“I find that both packs had crouched down and the accident occurred through mis-timing on engagement.”
He inferred that Christopher Jones’ inexperience as prop forward was the cause of this. He held:
“Jones’ lack of technique, training and experience as a prop was, I am satisfied, a significant cause of the mis-timing on engagement and the claimant’s accident.”
By the time of Mr Vowles’ accident Christopher Jones had been playing in the prop position for nearly an hour. Had he been doing so without difficulty or untoward event we think that there would have been no basis upon which the Judge could validly have ascribed Mr Vowles’ accident to Christopher Jones’ lack of experience. The Judge’s finding on causation was founded upon his finding that, once Christopher Jones took over as prop, things started to go wrong in the set scrummages. That finding was also the foundation for the Judge’s alternative finding of breach of duty, which we have set out at paragraph 32. In our judgment, the finding that problems in the set scrum were experienced once Christopher Jones took over as loose head front row forward is critical to the result reached by the Judge. If this was a finding that the Judge was entitled to make, the result that he reached must stand, even if he was wrong to find Mr Evans at fault for permitting Christopher Jones to be ‘tried’ in the front row. If it was a finding which is not supported by the evidence, then the Judge’s finding on causation cannot stand. Thus, ultimately, this appeal turns on the Judge’s analysis of the evidence relating to what happened in the set scrums once Christopher Jones took over as prop forward.
The crucial finding of fact
The Judge had this to say about the effect of Christopher Jones’ presence in the front row:
“Although the increasing tiredness of the forwards and the worsening condition of the pitch played their part in this hard fought match, I am satisfied that Christopher Jones’ lack of technique and experience as a prop was a significant contributory cause of the unsatisfactory nature of set scrummages, not only of collapses which were not a cause of the claimants accident but also mistimed engagement which was.
There is ample evidence which I accept that, after Christopher Jones became the loosehead prop, set scrummaging deteriorated although not to the extent that the Tondu were overwhelming Llanharan in set pieces or that the ball was coming out against the head.”
He added a little later:
“As Derek Brown, the Llanharan coach, explained collapsed scrums can be caused by poor engagement. This could account for the increased number of collapses after Christopher Jones took over as loose-head.”
The Judge summarised some of the evidence which was the foundation of these conclusions. This was provided by Gareth Davis, the Tondu hooker, Neil Bryant, the Tondu tight-head prop, who scrummaged opposite Christopher Jones, Christopher Jones himself and Mr Vowles. Those witnesses spoke of more disrupted scrummages and more frequent collapses of the scrum after Christopher Jones entered the front row. Mr Ian Murphy, QC, for the Respondent, took us to the transcripts of the evidence given by these witnesses which demonstrated that the Judge’s summary was fairly founded on the evidence that they had given.
Mr Leighton Williams attacked the Judge’s acceptance of this evidence. He drew attention to the following commentary on the reliability of the evidence made by the Judge himself:
“In determining how the claimant came to be injured and whether Jones’ lack of technical skill as a prop was a material cause of the failure of the two packs to engage properly I am faced with the difficulty of the absence of clear recollection of events by the witnesses in a game which was played 4½ years ago. This difficulty is compounded by the fact that most witnesses were not asked to give statements until within the last couple of years or so. The exception is the first defendant, the referee Mr David Evans, whom I found to be an impressive and accurate witness. In reaching that conclusion I had full regard to the fact that the first defendant owed a duty of care towards the claimant and would have realised from the time of the serious accident that he might be called to account.”
Mr Leighton Williams submitted that, in the light of these comments, it was not open to the Judge to base his finding on causation upon evidence of witnesses in conflict with that of Mr Evans.
This submission calls for consideration of what Mr Evans recorded about the behaviour of the scrum. In his ‘aide memoire’, after describing the circumstances in which Christopher Jones came into the front row, he said:
“Thereafter there were some difficulties with the scrum.
Initially it started to wheel. This almost became repetitive and I instructed both forwards that if it wheeled so far again I would consider it to be a deliberate act. At one scrum near the Llanharan line approx 10 minutes into the second half this occurred. I penalised Tondu. There were no further problems with the scrum wheeling. The next problem was with the scrum collapsing. This occurred a few times with the original props. The conditions underfoot were extremely slippery and contributed to this factor. Approx 20 minutes into the second half I instructed both forwards that if the scrum went down again however I would penalise. I gave one penalty for this against Llanharan in Tondu’s half approx on the 22m.
From there on the scrum did stay up and I repeatedly called for it to stay up “keep it up” and it did. There was some unsteadiness in the final minutes of injury time.”
In his Referee’s Report, he said:
“In the second half, a problem developed which had not been present in the first with wheeling of the scrummages beyond a position when the middle line becomes parallel to the touch line (ie 90 degrees). I instructed both sets of forwards that I expected the scrum to remain straight in the future and that I would penalise if I considered a side deliberately wheeled past 90 degrees. At a scrum near the Llanharan line, about 10 minutes into the half, this occurred once more. I considered Tondu to be the transgressors and awarded a penalty. There were no further problems in this aspect.
Collapsing
In the first half, the initial scrummage gave way due primarily to conditions under foot. At the second scrum, I awarded a penalty for lowering, referred to above and thereafter although players found difficulty in gaining and keeping a firm hold, problems in this aspect were by and large, alleviated until the second half. By this stage, forwards were becoming tired and Llanharan obviously had a makeshift front row. After 2 consecutive collapses when players feet slid from under them, within the Tondu 22 metre area, I instructed both sides that I expected them to keep their feet and may penalise in the future. Again I gave one penalty against Llanharan when I deemed a scrum collapse to have been their responsibility. Following this, the scrums tended to stay up and I repeatedly called to the players during the scrummage to ‘keep it up’”
Thus, on Mr Evans’ own evidence, greater difficulties were experienced once Llanharan had ‘a makeshift front row’ than before. The difference between his accounts and the oral evidence of the other witnesses was essentially one of degree. Mr Evans’ evidence does not suggest that scrummaging after Christopher Jones had entered the front row was so unsatisfactory that he should have ordered non-contestable scrummaging. The evidence of the other witnesses does, however, provide a foundation for such a finding. Despite his earlier comments about the quality of the evidence, the Judge said that he accepted the latter evidence. Was it open to him to do so?
In Assicurazioni Generali Spa v Arab Insurance Group [2002] EWCA Civ 1642 this court reviewed the considerable jurisprudence that warns appellate courts against interfering, unless there is very good reason, with the findings of primary fact based by a trial Judge on oral evidence. Mr Murphy referred us to this authority with such enthusiasm and at such length that, but for Lord Woolf’s prohibition on resort to Latin, we might have been minded to conclude that he saw this as a ‘tabula in naufragio’. The lesson is, nonetheless, a valid one. The Judge heard oral evidence from those best placed to convey to him their overall impressions of what happened at this tragic match. To a greater or lesser degree, all the evidence showed that problems were experienced with the set scrum after Christopher Jones entered the front row which had not been experienced before, at least to the same degree. In the last set scrum of the game, the evidence suggests that the Llanharan front row failed to crouch and engage as a synchronised unit. Mr Vowles’ accident resulted. There was, in our judgment, evidence upon which the Judge could properly conclude that the cause of this accident was that Mr Evans had, in breach of the Laws of the Game and negligently, permitted a player who lacked the suitable training and experience to play in the Llanharan front row. Accordingly we have concluded that this appeal must be dismissed.
Postscript
Mr Leighton Williams suggested that, if we upheld the Judge’s finding that an amateur referee owed a duty of care to the players under his charge, volunteers would no longer be prepared to serve as referees. We do not believe that this result will, or should, follow. Liability has been established in this case because the injury resulted from a failure to implement a Law designed to minimise the risk of just the kind of accident which subsequently occurred. We believe that such a failure is itself likely to be very rare. Much rarer will be the case where there are grounds for alleging that it has caused a serious injury. Serious injuries are happily rare, but they are an inherent risk of the game. That risk is one which those who play rugby believe is worth taking, having regard to the satisfaction that they get from the game. We would not expect the much more remote risk of facing a claim in negligence to discourage those who take their pleasure in the game by acting as referees.
ORDER: Appeal dismissed.
Appellants to pay respondent’s costs on the standard basis but subject to detailed assessment if not agreed. Detailed assessment of respondent’s costs pursuant to the Legal Aid Act 1998.
Leave to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)