Examining the liabilities of match officials for catastrophic injuries arising in sport following the leading cases of Smoldon v Nolan, and Vowles v Evans

Smoldon v Whitworth & Nolan [1997] PIQR P133, CA

Benjamin Smoldon, the claimant, was aged seventeen when he suffered serious injury while playing hooker in a Sutton Coldfield under-19s rugby match on 19th October 1991. While in a scrum which collapsed his neck was broken. Smoldon claimed damages against the first defendant, a member of the opposition team, and furthermore against the second defendant, who was the referee.

The  claim against the first defendant was dismissed at the Court of first instance. The claimant went on to argue that the second defendant, Michael Nolan, owed him a duty of care to enforce the Laws of the Game, to apply them fairly, and to effect control of the match so as to ensure that all players were not exposed to any unnecessary risk of injury. The claimant stated that the referee should of had regard to the fact that some of the players taking part in the match were under the age of eighteen. Under the Laws of the Game there was a requirement for the front rows of the scrum to engage in a “crouch-touch-pause-engage” sequence which the claimant alleged was not followed by the second defendant. The second defendant accepted that he owed the claimant a duty of care, but argued that the first defendant’s duty to the plaintiff was only to refrain from causing him injury deliberately or with reckless disregard for his safety. Therefore the first defendant’s standard of care affected the standard of care owed by the second defendant and subsequently the referee could only be liable to the claimant where he had shown deliberate or reckless disregard for his safety.

The Court of Appeal was required to decide upon the circumstances by which such a duty of care owed by a referee/match official would be deemed to have been breached, and moreover, to set an acceptable threshold of liability. Lord Bingham LCJ, who gave the leading judgment in the case, observed that the situation in which an injured player had attempted to sue a referee for negligence was unprecedented under the common law.

Upon hearing the various arguments the court agreed with the claimant’s definition of the second defendant’s duty of care. They held that the second defendant had not enforced safety requirements set out in the Laws of the Game which contained special provisions relating to players aged under nineteen. They also found that there had been approximately three to four times the number of collapsed scrums than normal in this particular game, the final one of which resulted in the claimant sustaining his injuries. As a result of the second defendant failing to instruct the front rows sufficiently and require the “crouch-touch-pause-engage” sequence the relevant scrum collapse and the subsequent injuries to the claimant occurred and that this was in breach of the referee’s duty of care to him.

The second defendant attempted to argue that the Court of Appeal should formulate the threshold of liability based on the test established several years earlier by Sellers LJ in the case of Wooldridge v Sumner [1963] 2 Q.B. 43 which held that:

If the conduct is deliberately intended to injure someone whose presence is known, or is reckless and in disregard of all safety of others so that it is a departure from the standards which might reasonably be expected in anyone pursuing the competition or game, then the performer might well be held liable for any injury his act caused.

The Woodridge case established the basis for the duty of care owed by the participants to spectators at sporting events. The standard for breaching a duty of care was set very high and required the claimant to prove an intentional or reckless disregard for the safety of others on the part of the defendant. The second defendant argued that this high standard was still required in order to protect referees/match officials from what might amount to frivolous litigation.

This argument was rejected by the Court of Appeal, which held that the appropriate standard by which to determine a breach of duty should be that the level of care required is that which is appropriate in all the circumstances, and the circumstances are of crucial importance.

The Court of Appeal found that it was not necessary to show that there was a high level of probability that if the scrum had collapsed the claimant would have suffered a serious injury of the kind which occurred. In fact serious spinal injury was a foreseeable consequence of the collapse of a scrum and therefore the failure to prevent collapse of the scrum was sufficient to be a breach of the referee’s duty of care. As to the argument that the claimant voluntarily accepted to the risk of injury, the Court of Appeal held that while Smoldon had consented to the ordinary incidents that often occur in a game of rugby, he had not consented to a breach of duty by the referee whose duty it was to apply the rules and ensure, at least as far as possible, that they were observed by the players involved.

Vowles v Evans [2003] EWCA Civ 318

The case of Vowles v Evans reached the court several years after the case of Smoldon v Whitworth and is another involving an injured rugby player, Richard Vowles, as well as a match official, David Evans. Vowles was a twenty-four year old amateur for the Second XV of his local team Llanharan which played in the Second Divison of the Welsh Rugby League in 1998. However, a shortage of front-row cover for the First XV meant that he was drafted in to play for the more experienced team. An injury during play led one Christopher Jones to play as prop for the remainder of the match even though he was vastly inexperienced in this position or at that level. During a scrum the forwards failed to engage properly and the claimant collapsed as the scrum subsequently parted. The claimant suffered a dislocation of the neck which resulted in permanent incomplete tetraplegia.

In the court of first instance case, Vowles [2003] 1 W.L.R. at 1607 the Welsh Rugby Union, rugby’s governing body in Wales, was held vicariously liable for the match official’s negligent refereeing. The claimant alleged that the referee had failed to discharge his duty of care by failing to take preventative steps to restore the stability of the scrum. Under Law 3(12) of the game, when a player professes an ability to play out of position in the front-row, the referee is obliged to make inquiries of both the proposed replacement as well as to the team captain, as to that player’s suitability for the position. Jones’ comments upon entering the position were, “I’ll give it a go.”

The claimant argued that any reasonable referee would or should have concluded that Jones was a player that was unsuitable for the position of front-row play in what was such a heated match and should have accordingly asserted his authority by demanding that the remainder of the match be played with non-contested scrummages as he is entitled to do so. This failure by the referee to acknowledge that Jones was not suitable for the position of play he found himself in amounted to a breach of the duty of care owed to the other players, specifically the claimant.

The Court of Appeal found that Rugby was of course a dangerous game and that the safety of the players involved in it relied on the due enforcement of the rules by the match officials. The referee in this instance owed a duty of care to all the players in the match and that by failing to comply with the particular rules in this matter the claimant was injured, the match official liable for those injuries, and the Welsh Rugby Union (WRU) held vicariously liable for the injuries. As Lord Phillips MR said in his leading judgment:

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. A referee of a game of rugby football owes a duty of care to the players.

However, it is worth pointing out that Lord Phillips MR did go on to say that a referee would not be held liable for errors of judgment, oversights or lapses that occur during the context of a fast-moving game, and that “[t]he threshold of liability must properly be a high one.”

Conclusion

The cases of Smoldon v Nolan, and Vowles v Evans caused much consternation with sporting authorities, match officials and, of course, the press. Many believed that finding referees liable for on-the-pitch accidents would lead to many of them leaving the game for fear of being sued. Elizabeth Emery, writing in The Telegraph in 2005, pondered the question of whether the law had encroached too far into the world of sport?

The truth of the matter though is that there has not been the flood of litigation feared by match officials in any contact sport and the rules laid down by the Court of Appeal have been key in this. The case of Allport v Wilbraham [2004] EWCA Civ 1668 is a perfect example of this.

In this case the claimant was severely injured again during a rugby scrum which resulted in paralysis from the neck down. The defendant had refereed the match and the claimant claimed damages on the basis that the defendant negligently failed to control the scrum in accordance with the Laws of the Game, in particular by failing to call “engage” before the front rows engaged and for failing to notice a player was not in the correct position. At the trial the claimant’s case was supported by his own evidence and that of two players from his team. The Defendant and the opposing team’s hooker gave evidence for the defendant. The trial judge preferred the defendant’s evidence to that of the claimant and his witnesses, concluding that the defendant was the most reliable and patently honest witness. The claimant went on to appeal on the basis that the judge (1) was not even handed in his approach; and (2) misunderstood some of the evidence; and (3) failed adeqately to explain his reasoning.

The Court of Appeal dismissed the appeal and held that the judge at first instance was entitled to reach the conclusions he had. In cases such as this, which involved a potentially very large claim turning on fairly detailed evidence it would not have been enough for the trial judge to simply say whose evidence he preferred. It was his duty to give reasons. In this case, however, there was little question in the minds of Auld, May and Neuberger LJJ that the original trial judge had given adequate reasons in his ruling. Further, they stated, that as a matter of principle it was open to a judge to conclude that one witness had changed his evidence on one issue in a way which does not call into question his honesty or reliability, while concluding that another witness’s change of evidence is demonstrative of  his general unreliability. Clearly as was stated in Smoldon v Nolan the circumstances are of crucial importance.

Other Matters

There have also been several other recent and pending cases in other jurisdictions that require a mention that perhaps show the other side of what match officials must face. Sometimes being sued is the least of their worries.

In 2007 a soccer referee from Chicago sued a player who allegedly attacked him for $50,000 after he cautioned the player for repeatedly tripping his opponents during a match. In his lawsuit, Ezequiel Ponce alleged that Luis Garcia assaulted him after Ponce kicked him out of a game at the Intra Sports Indoor complex in Elgin in December 2006.

Kenyan referee, Martin Wekesa Wamalwa, is currently suing his country’s football federation for £156,000 after his testicles were damaged when they were squeezed by Sparki Youth Manager Daudi Kajembe, a coach who was angry about a decision that went against his team.  Wamalwa’s lawyer said the attack, which occurred in September, meant the referee “can no longer enjoy his conjugal rights… following extensive damage to his sexual organs”.

Ricardo Portillo, a 46-year-old referee from Salt Lake City, has died a little more than a week after a 17-year-old soccer player had punched him, as did Richard Nieuwenhuizen, a 41-year-old referee from the Netherlands, who collapsed and fell into a coma after an attack by teenagers playing against his son’s club, Buitenboys, late last year.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

Resources

The Referee’s Liability for Catastrophic Sports Injuries – A UK Perspective by Richard Caddell in Volume 15 of Marquette Sports Law Review.

Tort Law Text And Materials Second Edition by Mark Lunney & Ken Oliphant. Oxford University Press.

Tort Law Fifth Edition by Deakin, Johnston, and Markesinis. Oxford University Press.

Has the law encroached too far into the world of sport? by Elizabeth Emery, The Telegraph 31 March 2005.

Smoldon v Whitworth & Nolan [1997] PIQR P133, CA

Vowles v Evans [2003] EWCA Civ 318

Wooldridge v Sumner [1963] 2 Q.B. 43

Allport v Wilbraham [2004] EWCA Civ 1668

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