BPP bar student Christian Mills explores the recent High Court decision and what it means for rugby clubs and players moving forward
“Play on, play on. Pretend it didn’t happen”, the tag rugby referee insists, as that week’s newbie makes a blatantly forward pass. Outraged that they aren’t allowed their own free pass (pardon the pun), experienced players often question why referees are so lenient with players new to rugby. Why aren’t they held to the same standard? The recent High Court decision of Czernuszka v King  EWHC 380 (KB) appears to answer that question.
On 8 October 2017, the claimant, Dani Czernuszka, was left paraplegic and wheelchair-dependent following a spinal injury sustained in her first competitive rugby game. She alleged negligence against the defendant, Natasha King, who tackled her.
The claimant, playing as an openside flanker, filled in for the scrum half at a ruck that had formed. The claimant was bent at the waist with her head and neck exposed. Upon the ball bobbling out of the ruck, the defendant came round the side of what was the ruck and appeared to place her bodyweight onto the claimant’s back. The claimant’s legs were out in front of her, whilst the defendant’s hands were on her legs.
Mr Justice Spencer was persuaded by the claimant’s argument that the legal test to be applied was whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances, which was the same test endorsed in Condon v Basi  1 WLR 866. The Condon test provides that the defendant’s duty is “to exercise such degree of care as was appropriate in all the circumstances”. Paragraph 38 of the judgment outlined how, in Condon, the court observed that “the standard of care was objective, but objective in a different set of circumstances; thus there will be a higher degree of care required of a player in a first division football match than of a player in a local league match”.
The judge was not persuaded that there was a principle to follow in Blake v Galloway  1 WLR 2844, and instead found that there was no conflict between the Condon test and the Blake reasoning or decision. Blake concerned an injury sustained during horseplay between two 15-year-old boys, where the high standard established was that “there is a breach of the duty of care owed by participant A to participant B ‘only where A’s conduct amounts to recklessness or a very high degree of carelessness'”. The judge found that the Blake standard was not applicable in this case, as Blake was in the context of horseplay and not of sport.
Mr Justice Spencer found entirely against the defendant, save for one aspect mentioned at paragraph 61 of his judgment. He found that the defendant was not offside, and therefore was allowed to contest for the ball. However, the defendant “should have modified her conduct because it was or should have been apparent that the claimant was treating the situation as though there was still a ruck”. In essence, the defendant should have recognised that the claimant was not aware that the ball was out of the ruck. Instead, she should have allowed the claimant time to make a decision. This sets a precedent that in a developmental game such as this, any reasonable, regular rugby competitor should ‘go easy’ on newer players and not play the game with full force. They should not capitalise on a new player’s misunderstanding or inexperience.
The judge’s reasoning can be found at paragraphs 58(ix) and (x). There, he explained that the defendant’s manoeuvre was “obviously dangerous and liable to cause injury”, and that the tackle “was executed with reckless disregard for the claimant’s safety in a manner which was liable to cause injury and that the defendant was so angry by this time that she closed her eyes to the risk to which she was subjecting the claimant, a risk of injury which was clear and obvious”.
The standard expected of more regular players is shown at paragraph 29: “at this level of rugby, with the claimant bending over in the position of acting scrum-half as though the ball was still in the ruck, he [Mr Edward Morrison, an eminent retired referee and the claimant’s expert] maintained that the defendant would or should have known that the claimant was treating the ball as in the ruck, that she would be completely unaware that she was about to be tackled and in those circumstances, the defendant should not have persisted in tackling the claimant but should have desisted”. This highlights the greater care those familiar with the sport should exercise towards new players.
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It comes as no surprise that those with a higher level of experience must exercise a greater duty of care. A lot of this case turned on its particular facts, and much attention was paid to the defendant’s alleged conduct in a previous game and the game on 8 October 2017 prior to the injuring tackle.
If the incidents leading up to the tackle are stripped away, this is a simple case of a competitor playing on the edge of the rules of the game and being too eager to assert their physicality upon the other team. The facts leading up to the tackle itself do not add anything salient as to whether the defendant failed to exercise such degree of care as was appropriate in all the circumstances. It is the tackle that is important, not whether the defendant swore at her opponents or tried to intimidate them.
The defendant’s alleged behaviour in the previous game raises the question of what ‘evidence’ should be admissible in sporting personal injury (PI) cases such as these. It could be argued that the defendant’s alleged previous conduct was not relevant in assessing whether she had failed to exercise such degree of care as was appropriate.
This is a seismic decision in that it is a first for the women’s game and sets a new precedent for sporting injury claims. The women’s game is expanding rapidly and this case hopefully assists clubs and players in safeguarding against similar injuries.
Sadly, this isn’t the first time a player has been paralysed as the result of a tackle, and it certainly won’t be the last. Meaningful change remains needed to the game’s tackle height laws, whilst referees need to exercise greater control over developmental games such as in this case to ensure safety of new players. If necessary, referees should consult both captains if a game threatens to boil over.
It is expected that the Rugby Football Union (RFU) will foot the damages in this case, as they insure all players at all levels through a mandatory scheme. The RFU will continue to pay for similar cases unless and until they set higher standards.
Christian Mills is an aspiring barrister currently studying the bar course at BPP University in Leeds.