Smoldon v Whitworth & Anor [1996] EWCA Civ 1225

EWCA-Civ
Smoldon v Whitworth & Anor
[1996] EWCA Civ 1225 · 1996-12-17

THE LORD CHIEF JUSTICE :

The second defendant (Mr Nolan) appeals against a finding of liability made against him by Curtis J on 19 April 1996. That finding arose from the second defendant's acts and omissions when refereeing a rugby football match between Burton Colts and Sutton Coldfield Colts on 19 October 1991. The finding was made in favour of the plaintiff (Mr Smoldon), the captain and hooker of the Sutton Coldfield team who, then aged 17½, was catastrophically injured during the match when a scrum collapsed and his neck was broken.The plaintiff's claim against the first defendant, a member of the Burton team, was dismissed by the judge, and there is no appeal against that decision.Although earlier cases have explored the duty owed by one sporting participant to another (for example, Rootes v Shelton [1968] ALR 33; Condon v Basi [1985] 1 WLR 866 ; Elliott v Saunders, unreported, 10 June 1994, Drake J), and that owed by a sporting participant to a spectator (for example, Wooldridge v Sumner [1963] 2 QB 43 ; Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668), there appears to be no previous case in which a rugby football player has sued a referee in negligence. The case is one of obvious importance to the plaintiff, whose capacity for active and independent life has been blighted in the flower of his youth; it is also of concern to many who fear that the judgment for the plaintiff will emasculate and enmesh in unwelcome legal toils a game which gives pleasure to millions. But we cannot resolve the issues argued before us on the basis of sympathy or personal predilection. We must instead endeavour to apply established legal principles, so far as applicable in this novel field, in order to draw on "that public wisdom by which the deficiencies of private understanding are to be supplied".

A - THE CONTEXT

(1) Rugby Football

It is unnecessary for the purposes of this judgment to attempt to give any detailed description of the game of rugby football. It is a game in which speed, fitness, dexterity, ball sense and the other attributes of the talented games player are valuable qualities; it is also a game in which, particularly in some playing positions, size, weight and strength are an asset. It is a tough, highly physical game, probably more so than any other game widely played in this country. It is not a game for the timid or the fragile. Anyone participating in serious competitive games of rugby football must expect to receive his or her fair share of knocks, bruises, strains, abrasions and minor bony injuries.

(2) The Laws of the Game

During the season l991/l992 the playing of rugby football in this country was governed by the Laws of the Game issued by the International Rugby Football Board. These were accompanied by instructions and notes for the guidance of players and referees, and the Laws contained special provisions relating to players aged under nineteen. By Law 6(3) referees were required in every match to apply fairly the Laws of the Game.Law 20 governed the scrummage and contained the following provisions relevant for present purposes:
"(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 no more than one arm's length from their opponents' shoulders.
[Under 19] In the interest of safety each front row should touch on the upper arms and then pause prior to engagement in the sequence: crouch - touch - pause - engage..........[Under 19] (5)(a) While a scrummage is forming, the shoulders of each player in the front row must not be lower than his hips,..... (b) While the scrummage is taking place, .......the shoulders of each player must not be lower than his hips, ......."To this Law there was a Note which said:"(viii) In the event of a scrummage collapsing the referee should whistle immediately so that players do not continue to push".Law 20(14) and (16) provided in part:
"(14)...........players in the front rows must not at any time during the scrummage:-
........(b) wilfully adopt any position or wilfully 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.............

(16) A player must not:-

..............(d) wilfully collapse the scrummage, or (e) wilfully fall or kneel in the scrummage......."A Note added:"(xvii) Referees must be strict in penalising for the wilful collapsing of the scrummage as stated under Law 20(15)(d) and Law 26(3)(g)".It seems clear that the first of these references should have been to Law 20(16)(d).Law 21, governing rucks, contained similar provisions providing that a player joining a ruck should have his head and shoulder no lower than his hips and that he must not wilfully collapse the ruck.Law 22, governing mauls, contained parallel provisions. In both instances these provisions were specifically applied to players under 19.Under the heading "Misconduct, Dangerous Play", Law 26 provided:"(3) It is illegal for any player:- (f) in the front row of a scrummage to form down some distance from the opponents and rush against them, (g) wilfully to cause a scrummage, ruck or maul to collapse,......".This last provision was specifically applied to players under 19.To reinforce the effect of the Laws, the International Board from time to time issued Directives. In March l981 a Directive was issued to the following effect:

"Dragging Down by Props

The International Board is concerned at an increasing tendency for props to endeavour to drag down their opponents by pulling on their jerseys and/or outer arm. Such practices carry an attendant risk of collapse of the front row with the possibility of serious injury due to the manner in which the players concerned are likely to fall.The present methods of formation of the front row and requirements for binding are under review by the Board and will be considered again at its meeting next year. In an effort to improve the situation certain changes have been made to Law 20 to be operative in each Union next season. Meanwhile Member Unions are to direct referees that in the interests of safety, they must take strict measures to penalise the practices referred to above, or any other action which is likely to cause the scrummage to collapse".In August l981 a further Directive was issued directing players, coaches and referees to observe strictly Law 20(14)(b) quoted above.In March l991 the International Board issued a further Directive on Law 20 in these terms:

"1. SCRUM ENGAGEMENT SEQUENCE

The Board views with concern the continued lack of observance of the "phased sequence of engagement" within Law 20(2). It is vitally important to reduce the impact force at the scrum engagement. Therefore the following engagement sequence is to be strictly observed:

CROUCH - TOUCH - PAUSE - ENGAGE

Front row players must adopt the CROUCH position before the touch. Head and shoulders must remain above the level of the hips, with knees bent sufficiently to make a simple forward movement into engagement. A light TOUCH on the upper arm is all that is required as it is primarily to establish the safe distance, not to grip the opponent. Players should keep their chins up and heads straight in order to maintain the normal and safe alignment of the cervical spine. The PAUSE then is to give players time to check visually that this safe alignment has been made before they ENGAGE.2. SCRUMMAGE COLLAPSEThe Board heard with concern of the growing tendency of referees to allow the scrummage to continue after its collapse if the ball appears to be imminently available.In the event of a scrummage collapsing the referee in the interests of safety must whistle immediately so that players do not continue to push and put further pressure into an unstable situation.The importance of these Directives as safety factors within the Laws cannot be overstated and should be implemented at all levels of the Game."The significance of these Laws was appreciated by the Staffordshire Rugby Union Society of Referees of which the second defendant was a member. A meeting held on 2 September l991, at which the second defendant was not present, recorded in the Minutes (which the second defendant received and looked at):-
"Referees place themselves at great legal risk of negligence if they do not follow the Laws at U.19 level. This cannot be stressed too highly enough......"
and with reference to the scrum engagement sequence (crouch - touch -pause - engage) the Minute noted:"This must be enforced and scrummaging should not continue until players properly carry out this sequence. This is not an optional directive".

(3 ) The Function of the Referee

The function of the referee is to supervise the playing of the match between the opposing teams, endeavouring to apply the rules of the game fairly and judiciously so as to ensure that the flow of play is not unnecessarily interrupted, that points awarded are fairly scored and that foul or dangerous play is discouraged and where appropriate penalised or prevented. This function has often to be performed (as in the present case) in the context of a fast-moving, competitive and vigorous game, calling for many split-second judgments and decisions. The referee cannot be in all parts of the field at the same time. He cannot hope to see everything which goes on. It is a demanding and difficult job, usually (as here) performed out of goodwill by a devotee of the game.

B: THE DUTY OF CARE OWED BY THE SECOND DEFENDANT TO THE PLAINTIFF

In his amended statement of claim the plaintiff pleaded:
"4.2 The Second Defendant owed a duty of care to the Plaintiff:
a) to enforce the Laws of the Game,b) to apply fairly the Laws of the Game without any variation or omission (save as provided in Law 6(3) of the Laws of the Game),c) to effect control of the match so as to ensure that the players were not exposed to unnecessary risk of injury, andd) to have particular regard to the fact that at least some of the players (including the Plaintiff) were under the age of 18 years at the date of the match.The Plaintiff will refer at any hearing to the contents of the Book entitled "Laws of the Game l991/92" for the full terms and effect thereof."In his amended defence the second defendant pleaded:"(4)(b) It is admitted that the Second Defendant, as referee of the game, owed a duty of care to those playing in the game to exercise reasonable skill and care with a view to achieving those aims and objects set out in Paragraph 4.2 of the Statement of Claim. To that extent, and no further, and subject to what appears in sub-paragraph 4(c) hereinafter, that paragraph is admitted. If and in so far as that paragraph may be alleging a stricter, higher or wider duty of care on the part of the Second Defendant as referee, such allegation is denied; (c) 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;......".The second defendant's pleading was founded on observations of Sellers and Diplock L.JJ. in Wooldridge v Sumner, above, a case in which a photographer attending an equestrian competition was injured by one of the competitors. Sellers L.J. said (at page 57):
"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."
Diplock L.J., having recognised (at page 67) "that the standard of care which a reasonable man will exercise depends upon the conditions under which the decision to avoid the act or omission relied upon as negligence has to be taken", said at page 68:
"The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these:
"A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety"."
Drawing an analogy between the duty owed by participant to spectator and that owed by referee to player, counsel for the second defendant accordingly submitted that while the second defendant owed the plaintiff a duty of care and skill, nothing short of reckless disregard of the plaintiff's safety would suffice to establish a breach of that duty.The plaintiff relied on the judgment of Sir John Donaldson M.R. in Condon v Basi , above, at page 868, and submitted that the second defendant owed a duty to the plaintiff to exercise such degree of care as was appropriate in all the circumstances. This test Sir John derived from the judgment of the High Court of Australia in Rootes v Shelton , above, and it was adopted by Drake J. in Elliott v Saunders , above.The judge, at page 14 of the transcript of his judgment, adopted the test proposed by the plaintiff. In our judgment he was right to do so. 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 resolved 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 l991. 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 l991, 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.The second defendant placed great reliance on the facts that he had not himself directly caused any injury to the plaintiff, and that any such injury was the result of acts and omissions on the part of third parties (namely, the other members of the scrum). He relied on observations of Lord Mackay of Clashfern in Smith v Littlewoods Organisation Ltd [l987] A.C. 241 at 261 to support the submission that the second defendant could not be held liable unless the court found that there was a high level of probability of injury of a kind which the Laws were designed to prevent as a result of a collapse of the scrum. It was not enough to show a high probability that the scrum would collapse; it had to be shown that if it did collapse serious injury of the kind specified was not merely a possible but a highly probable consequence. We are quite unable to accept that submission. There can be no doubt that the scrummaging rules set out above were designed to minimise the risk of spinal injuries caused in collapsing scrums, this being a risk of which those managing or coaching rugby teams or refereeing or playing in matches were by October l991 well aware. It is accepted that the second defendant owed the plaintiff a duty of care and skill. It is further accepted that serious spinal injury was a foreseeable consequence of a collapse of the scrum and of failure to prevent collapse of the scrum. If the second defendant were properly found to be in breach of his duty of care owed to the plaintiff by failing to take appropriate steps to prevent a collapse of the scrum, and if as a result of his failure a scrum did collapse and a player such as the plaintiff thereby suffered spinal injuries of the kind which the rules were designed to prevent, then in our judgment the second defendant would be liable in law for that foreseeable result of his breach of duty, despite the fact that (quantified statistically) it was a result which was very unlikely to eventuate.

C. THE JUDGE'S FINDINGS

(1) The Narrative

The judge found that the match between these two teams started and continued at a fast pace with strongly contested scrummaging between two equal sides. After ten minutes the plaintiff replaced another player as hooker on the Sutton Coldfield side, this being his usual playing position. The second defendant said that the players "started off at 100 m.p.h.", and the judge accepted that this start set the pattern of the match. The match was described by some as somewhat violent, which led to the second defendant sending off two players, one from each team, in one case for hitting an opponent, in the other case for trying to. The match was also described as having been "played in a competitive spirit". The judge accepted that, at times, both these descriptions were apt. The judge accepted evidence of a punch being thrown by an unidentified scrummager and also of some head-butting and use of fists in the scrum. Both sides made some complaint of "wrestling", but the judge concluded that whatever occurred was as much the fault of one side as the other.The judge was satisfied by the evidence which he heard that the scrums were repeatedly coming together in a rushed way and with excessive force. One player said that "We came in hard", and the plaintiff himself described some "charging". The judge accepted evidence that the reason for the trouble between the two packs of forwards was the way in which the scrums came together.The judge was further satisfied that these impacts were the likely cause of a large majority of the scrums collapsing, as no proper engagement took place. He accepted that some collapses occurred partly for other reasons, for example because the front rows were packing too low. But he was satisfied that the number of impact collapses was abnormally high. He declined to find precisely how many scrums collapsed in this way, but accepted the body of responsible evidence which in his judgment proved that there were at least twenty such collapses, as evidenced by reports made at the time. He was satisfied from the evidence that it often took two or three attempts to set most of the scrums in the game.Describing the series of scrums in which the plaintiff was injured,

the judge said:

"I have no doubt that ten minutes from no-side the constant scrummaging which had characterised this game plus the abnormal number of collapses, had caused the packs to be physically weary. This is when young limbs are at their more vulnerable, as the second defendant accepted in evidence.
The sequence of events was, as I find, as follows. The put-in was Burton's. On the first scrum the front rows bound between themselves and to each other and then collapsed. On the second binding the binding occurred but the scrum broke up because the ball was either not put in or it may have gone out, and I mean of the tunnel.On the third there was no C-T-P-E, indeed there was a strong impact between the teams. Whether it amounted to a "charge" by either or both of the two sides is questionable. I do not think it matters over much. The plaintiff himself had prior to the attempted engagement told his pack to calm things down.I find the scrum went down immediately; in my judgment there was no time for nor did engagement in fact occur. Both front rows were wholly or partly on the floor. It is possible that the Sutton loosehead fell to the floor first: Sheriff (that is Andrew Sheriff of course) [the Sutton tighthead prop]) was still bound to the plaintiff, Sheriff released him on managing to get erect and the plaintiff fell backwards. He was obviously already injured as he could not, and indeed said he could not, feel his legs."

(2) The Evidence

The judge received a considerable body of evidence, much of which was (understandably in the circumstances) contradictory. He identified four witnesses, three spectators and a player, whom he found impressive and reliable. All four of those witnesses gave clear and unshaken evidence that the second defendant did not during this match insist on the crouch-touch-pause-engage sequence being followed, and that it was not followed.The judge also gained a valuable insight into the game from two contemporary reports. One of these, written by the father of the Sutton tighthead prop on the day following the accident, said:
"......The accident occurred during a set scrum which collapsed. It was the third Set scrum which collapsed during this particular Breakdown of Play, i.e. Ben's accident occurred on the third Set scrum. The game was frequented by this particular problem....conditions were good for rugby. Game was marred by collapsed scrums...."
The second report, written by the father of the Burton hooker, said:
"After the first six or so scrums Sutton replaced their hooker by bringing Ben Smoldon from the wing to hooker and moving the hooker to the wing. Throughout the game there had been at least twenty five collapsed scrums, and in fact the final scrummage had collapsed twice prior to the accident. This collapsing had resulted in five penalties being awarded, three against Sutton and two against Burton...."
Mr Shingles, the Sutton touch judge, gave evidence that he had early in the game seen head butting and punching in the scrum, and had drawn this to the attention of the second defendant, suggesting that someone in the front row would be hurt if the referee did not do something about it. According to him, the second defendant replied:
"I know, but I can't see who's doing it"
. The judge accepted evidence that a referee should take notice of such a report, and found that the second defendant should have considered it and acted on it so as more tightly to control the scrum and to take appropriate disciplinary measures.Of three experts called to give evidence at the trial, the judge gained most help from the evidence of Mr Johnson, who was called as an expert witness by the second defendant. Mr Johnson said, and the judge accepted, that it was difficult for a referee to spot who was collapsing a scrum, but that the recent Law changes in l991 gave referees of Colts' matches the power they needed to stop scrums collapsing and that the referee in such games was under an active duty to prevent collapses. In his opinion the referee's responsibility was to ensure the players did not injure themselves or others. He considered that the referee had what he called a "preventive mantle". He also testified that if the C-T-P-E sequence were properly applied with evenly matched scrums, as these were, he would not expect as many as five to six collapsed scrums and if there had been twenty five that would be indicative that the referee's standard of refereeing on scrummaging was below an acceptable standard. After observing the first two scrums of the match, the referee should (in Mr Johnson's opinion) pull up the two packs if their scrummaging is open to objection. He should tell them what is required and speak again if the situation persists. At that stage, he should if necessary penalise the players: if he can identify the offender, then that offender should be penalised; if he cannot identify the offender, then he should give a penalty against the attacking side where the referee judges that the scrum has been deliberately collapsed but he cannot tell who is responsible. If that does not cure the situation, the referee has to consider sending a player off. He can only do this if he has identified the offender, but in the last resort the referee can abandon the game or shorten it by calling no-side, a course permittedunder the Laws.

(3) The Judge's Conclusions

Relying on the evidence already referred to, the judge held (at page 28(D) of the transcript of his judgment) that the second defendant did not enforce the C-T-P-E scrummaging sequence. He accepted the expert evidence that about six collapsed scrummages would not be abnormal in such a game, but concluded that there were roughly three or four times that number. In the light of that finding and Mr Johnson's evidence, the judge concluded that the second defendant had fallen below the standard of a reasonably competent referee in refereeing the scrummages in this game.In his final conclusion

the judge said (at page 33(B) of the transcript):

"However, in my judgment the plaintiff succeeds against the second defendant who in important respects relating to the scrums failed to exercise reasonable care and skill in the prevention of collapses by sufficient instruction to the front rows, and in the use of C-T-P-E thereby reducing the impact of the engagement of the two packs to an acceptable level for Colts' games and especially that of the third scrum. As a result, the third impact was substantial, it caused the relevant third collapse and was likely to and on this occasion did cause the plaintiff's injury. In the circumstances of the previous events of this game which I have rehearsed, this was foreseeable....The second defendant based his case,until he gave evidence, upon the fact that the injury occurred in a solo scrum as opposed to the third of three collapsed scrums. He abandoned this in the face of the evidence he heard in this Court. I find this misapprehension difficult to understand. In my view it shows a lack of attention to the scrummages and in particular to the enforcement of C-T-P-E.
Afterwards, that is to say after the match and the plaintiff's injury, the referee spoke to Mr Skiffington senior who was responsible for sending the ambulance to attend to the plaintiff. The referee, according to Mr Skiffington, said "What could I do about these" meaning the collapsed scrums, "I've awarded penalties against both sides although I couldn't tell who was the guilty party". Making all allowances for the agonies of the moment, this observation (which I am satisfied was made) does throw light on this defendant's limited approach.It is clear to me that the second defendant did not take a tight grip on the scrummaging from the start on the general lines (my emphasis) to be expected of a reasonably competent referee. He did not authoritatively tell the scrums and often enough what was required of these Colts. He did not understand fully nor enforce C-T-P-E as this game demanded, nor were his powers properly and fully exercised. Even supposing that the five to six penalties he imposed were all for scrummaging offences, in the circumstances of the collapses proven and the reasons for them, they were in my judgment not enough. I noted that not one of the front row players who gave evidence thought he had been penalised, which would indicate the second defendant did not make his point with the players - the tap on the shoulder for instance.In his written evidence the second defendant says....that he did not think it was necessary to call "no-side". Amongst the reasons for that decision was that he did not think that the number of collapsed scrums was excessive. Had he appreciated the true situation on the number of and type of collapses, I consider that he would have called "no-side" or certainly ought to have done so as Mr Johnson in his opinion demonstrated."

D. THE SECOND DEFENDANT'S FACTUAL CRITICISMS OF THE JUDGMENT

The second defendant did not challenge the judge's finding on the approximate number of collapsed scrums and the reasons for those collapses. He did, however, make a number of factual criticisms of other features of the judgment.

(1) Immaturity of Colts

Counsel criticised the significance attached by the judge to the physical immaturity of Colts. We cannot accept this criticism as sound. It is not in doubt that the authorities responsible for the government of rugby football introduced a number of new rules specifically designed to protect young players against the risk of spinal injuries caused by excessive impact on engagement and by collapsed scrums. It would seem clear that one of the reasons for affording this special protection was the belief that younger players were particularly susceptible to injuries sustained in this way. Whether or not there were other reasons for giving this protection, it seems very unlikely that the physical differences between teenagers and grown men was not a prominent reason.(2) Absence of Complaint :The second defendant relied very heavily on the fact that although this match was watched by a number of adults, including parents, former players and club officials, no one during the match or at half time remonstrated with the second defendant or in any way complained at his failure to referee the scrummaging in the game in a proper manner. Even the players, who could be assumed to be familiar with the rules, did not complain at the time. This showed, so it was submitted, that the complaint made against the second defendant was one made with the benefit of hindsight and in knowledge of the plaintiff's catastrophic injury. If in truth the second defendant's refereeing was as incompetent and ineffective as was suggested, then it was inconceivable that no contemporary complaint was made.In responding to this point, the plaintiff drew attention to the evidence of Mr Shingles already referred to: if the front row forwards were exchanging punches, as he suggested, they could not be binding properly, and lack of binding is a recipe for collapse. Attention was also drawn to evidence that the Burton captain had complained to the referee at the time about the collapsing of the scrums, to evidence from the replaced Sutton hooker that he had protested to the referee about the behaviour of the opposing front row, to evidence that other spectators had shouted to the referee to keep the front rows apart, to evidence from a witness (whom the judge accepted) that he had at the time found the frequency of collapsed scrums very worrying and to the reports critical of the number of collapsed scrums written shortly after the match.It is perhaps a little unfortunate that the judge did not expressly address the second defendant's submission on this matter, but he must have had it in mind and it clearly did not weigh with him. This may be because of evidence given by the second defendant himself, which (on the judge's unchallenged finding on the number of collapsed scrums) virtually amounted to an admission:
"Q. Mr Nolan, there is a great gulf between your evidence about the number of collapsed scrums and other witnesses who have given evidence, is there not?
A. There seems to be a gulf between all of them, yes.Q. I am not going to go through them all but you are saying, as I understand it, somewhere between five and seven or eight?A. Actual collapses, yes.Q. If there had been 25 - which you do not accept, but if there had been, that would have to be deliberate?A. Yes.Q. You are going to get to the bottom of that after 25?A. Or a lot earlier......Q. Anything like 25 would represent repeated occurrences of potential danger to both front rows, would it not?A. It would, yes.Q. Any reasonably competent referee of under 19s with the l991/92 Laws not only could but would have ensured that there would have been less than half any such number, do you agree?A. Yes.Q. From your experience, Mr Nolan, 25 or so collapses would mean that there was something very seriously wrong with the game, would it not?A. Yes.Q. It would mean that the phased engagement was not being enforced, would it not?A. Yes.Q. It would mean that the scrums were going down much too low in contravention of the Laws, would it not?A. Yes.Q. It would mean that the players were deliberately causing the collapses, would it not?A. Yes.Q. By 25 or so it would mean that the referee had lost control of the game?

A. Completely."

The judge was also no doubt mindful of the evidence of Mr Johnson, the second defendant's expert witness, whom the judge accepted:
"Q. With the l991/92 phased engagement of the crouch-touch-pause-engage, if that is being enforced and the sides are evenly matched, as I understand your evidence you would not expect more than five or six collapsed scrums at most during the game?
A. I would be surprised if I saw that many if that actually was happening.Q. So five or six would in fact cause you surprise?A. It would indeed.Q. Twenty five in the course of a game of under 19, l991/92 rules being enforced, would be quite remarkable, would it not?A. We would spend an awful long time, my Lord, afterwards discussing his performance in the bar. The answer is yes."In the light of this evidence, it is not altogether surprising that the judge was not swayed by the absence of contemporary complaint.

(3) The Advice from the Touchline

Complaint was made of the significance attached by the judge to the warning given to him by Mr Shingles, the touch judge. It is true that the judge did attach significance to this evidence, but only because of the light it threw on the second defendant's failure to stamp his authority and discipline on these two packs. The judge did not relate the evidence directly to the collapse of the scrums. We cannot accept that the judge misunderstood or improperly relied on this evidence.

(4) Enforcement of C-T-P-E

The second defendant attacked the judge's conclusion that the second defendant did not enforce the C-T-P-E scrummaging sequence, and drew attention to the evidence of witnesses who testified that he did. The judge's conclusion on this point is clearly crucial to his decision against the second defendant, and it is understandable that the second defendant recognises the need to undermine it.As already shown, the judge did not lack evidence on which to base his conclusion. We can see no basis upon which this court could properly prefer the evidence of witnesses whom we have not seen to that of witnesses whom the judge did see and hear and whose evidence he accepted. The judge's conclusion is also strengthened by the expert evidence that if the C-T-P-E scrummaging sequence had been enforced, there would not have been the number of collapsed scrums which the judge found to have occurred.In our judgment this court cannot not properly disturb the judge's conclusion.

(5) Reports of Other Matches

The judge placed no reliance on reports of the second defendant's refereeing of other matches, most of which were favourable but one of which was critical of his failure to control the scrummaging. The second defendant accepted that such reports would be unhelpful if the complaint in this case were of a momentary lapse or failure, but submitted that since the complaint was of an overall failure to control the match and impose his authority it was relevant to take account of other matches in which he was reported to have shown proper control and authority. In our judgment the trial judge was entitled to take the view he did. The evidence was that this was the first Under 19 match which the second defendant had refereed since new rule changes had come into force. The judge was in our opinion right to concentrate his attention on the evidence of what happened during this match, and to regard evidence of what had happened in other matches as unhelpful.(6) Failure to Call No-Side.Although the second defendant accepted that a power to call no-side was conferred by the rules, he criticised the judge's conclusion that this course should have been followed as unrealistic in the circumstances. It was a course so extreme and so rarely followed that the second defendant could not be fairly criticised for having failed to adopt it.We see some force in this criticism. Although the power to call no-side prematurely exists, it is plainly a power to be exercised as a last resort, when and only when all other measures have failed. But the judge placed little reliance on this conclusion in his judgment, and rightly so because, on his findings, the second defendant certainly had not adopted all the measures which he could have adopted to impose his authority on the two packs and insist on observance of correct scrummaging procedures, nor did he suggest that the players were in any way resisting or defying his authority. The gravamen of the charge against the second defendant is that he failed to take the prescribed steps to ensure that proper procedures were followed, and that is a charge which on the evidence the second defendant failed to rebut.The second defendant asked that these criticisms of the judge's approach should be considered cumulatively and not as individual items. Doing so, we are not persuaded that grounds exist for disturbing the judge's conclusion.

(E) VOLENTI NON FIT INJURIA

The second defendant's first and main defence was that he had not committed any actionable breach of duty. But he pleaded that if, contrary to that main defence, he had committed such an actionable breach of duty, then the plaintiff had consented to the risk of injury of the type sustained by him by voluntarily playing as a member of the front row of his team's pack of forwards and/or by voluntarily participating in the practice of collapsing, thereby also increasing the risk that the opposing front row might seek to do the same.In the course of his judgment the judge acquitted the plaintiff of accusations made against him personally and found that the plaintiff had done nothing in the course of the game, and particularly in the last three set scrums, which amounted to improper play and that he had not by his own negligence contributed to his own injury. The judge also rejected the second defendant's reliance on the defence volenti non fit injuria , observing that although the plaintiff had consented to the risk of injury in this game of rugby, he could not by inference be held to have consented to the second defendant's breach of duty as found by the judge.The second defendant argued on appeal that the judge was wrong to have rejected his defence of volenti . He argued that since the plaintiff himself had known of the rules and of the dangers of collapse, he had impliedly consented to the risk of injury. In our judgment this argument is unsustainable. The plaintiff had of course consented to the ordinary incidents of a game of rugby football of the kind in which he was taking part. Given, however, that the rules were framed for the protection of him and other players in the same position, he cannot possibly be said to have consented to a breach of duty on the part of the official whose duty it was to apply the rules and ensure so far as possible that they were observed. If the plaintiff were identified as a prime culprit in causing the collapse of the scrums, then this defence (and contributory negligence) might call for consideration. But that is not the case.The judge was at pains to emphasise that his judgment in favour of the plaintiff was reached on the very special facts of this case, having regard in particular to the rules designed to afford protection to players aged under 19 and to the evidence that the number of collapsed scrums which was permitted to occur in the course of this match was well in excess of what any informed observer considered to be acceptable. He did not intend to open the door to a plethora of claims by players against referees, and it would be deplorable if that were the result. In our view that result should not follow provided all concerned appreciate how difficult it is for any plaintiff to establish that a referee failed to exercise such care and skill as was reasonably to be expected in the circumstances of a hotly-contested game of rugby football. We are caused to wonder whether it would not be beneficial if all players were, as a matter of general practice, to be insured not against negligence but against the risk of catastrophic injury, but that is no doubt a matter to which those responsible for the administration of rugby football have given anxious attention.We would dismiss this appeal.This is the judgment of the court.ORDER : Appeal dismissed with costs and legal aid taxation.

Cited in 4 later judgments