Dani Laura Chelsea Czernuszka (Nee Watts) v Natasha Mercedes King
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 23 February 2023 |
| Neutral Citation | [2023] EWHC 380 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-003394 |
[2023] EWHC 380 (KB)
THE HONOURABLE Mr Justice Martin Spencer
Case No: QB-2020-003394
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Weir KC appeared on behalf of the Claimant
Mr Geoffrey Brown appeared on behalf of the Defendant
Hearing dates: 6 th – 10 th February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 rd February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 8 October 2017, the Claimant, aged 28 and a mother of two, in her first competitive game of rugby, suffered an injury to her spine which has left her paraplegic and wheelchair-dependent for the rest of her life. By this claim, she claims damages in negligence against the Defendant, who carried out the tackle which caused this injury. Unfortunately, injuries sustained in the course of games of rugby, and other sports such as association football, are not uncommon, these being contact sports played at speed where players can differ in height, stature and weight. In general, injuries, even serious injuries, are an accepted risk of the sport and do not sound in damages. However, sport is not exempt from, or immune to, the law of negligence. As will be seen (see paragraphs 35–45 below), the courts have deemed actionable injuries sustained where the conduct of the opposing player fell below the standard of care appropriate and to be expected in all the circumstances. Sometimes, by reason of the particular circumstances, the bar for that standard will be set high requiring recklessness or a very high degree of carelessness: see, for example, Blake v Galloway discussed at paragraphs 44 and 45 below. The main issues in this case are whether, for the Defendant to be found liable, it is necessary for the court to find that she was reckless or exhibited a very high degree of carelessness given the particular circumstances of this case and whether, depending on the court's findings in relation to the first issue, the tackle executed by the Defendant which caused the Claimant's injury met this test so as to render the Defendant liable to the Claimant in damages.
Pursuant to the Order of Deputy Master Toogood KC dated 22 April 2022, liability has been tried as a preliminary issue, with the assessment of damages to abide the outcome of this liability trial.
The Background Facts
The Redingensians Rugby Club, known as the Rams Rugby Football Club since May 2018, was founded as Old Redingensians in 1924 by former pupils of Reading School: they celebrate their centenary next year. The club runs five male adult teams and the first team plays in South West Division 1. Players often come up through the youth teams, with the youth section being one of the biggest in the area with approximately 400 boys and girls playing on Sundays. The club fields sides at every age group from Under 6 to Colts.
Inevitably, there are many women associated with the club, whether as wives/partners of players or as mothers of juniors or in various other capacities. There is also a growing interest among women in playing the game of rugby. In about October 2016, the club decided to set up a women's team, known as The Sirens.
Bracknell Rugby Football Club was founded in 1955. The Defendant told me that its ladies' team folded in 2014: by that time, she had been playing rugby for about 8 years, and they had reached quite a high level in the league. The ladies' team was re-formed in 2016 and re-joined the league in 2017 at the lowest level – the “developmental level” – with a team which was a mixture of experienced ladies, such as the Defendant, and those who were new to the game. The Defendant was the captain and, as Amber Clark (one of the Bracknell players who was called to give evidence) said, all the Bracknell team looked up to the Defendant.
Sirens' first ever game, and the first game of the re-formed Bracknell Ladies team, was after the end of the 2016/17 season, a friendly game against each other at Bracknell on 8 May 2017. For the majority of the Sirens team, this was their first ever game of rugby. Unfortunately, it was not a happy experience for some of the Sirens. Although the perceptions differ on each side, I have no doubt that the description by the Sirens players genuinely represents their perception of the game, and of the Defendant:
The Claimant says: “The game was meant to be a friendly but it was played hard and very aggressively. Tash [referring to the Defendant] stood out as a prominent player. She was very large and aggressive and had punched SJ [referring to her friend, Sarah-Jane Garside] during the game. It was also during this game that she broke Keeley's arm.”
Claire Cook states: “During the match the Defendant whacked me hard on the forehead. I wasn't expecting it as neither of us had the ball in hand. I saw her running towards me before it happened but the whack came out of nowhere, it was like a massive rock had fallen from the sky! My head flipped back with the force and I was immediately dizzy. I saw the Defendant near to me afterwards and starting to move away from me. She's a big, strong lady and not easy to stop. I wasn't aware of her name at the time but we quickly got to know who she was. I didn't see her actually hit me because it came from nowhere but she was the person approaching me when it happened and the person closest to me before and afterwards. It seemed as though no one had really seen what happened to me. I asked to come off because I wasn't feeling right. After the game and in the evening, I cried a lot; I was in such shock. I did go to my GP and I was told that it wasn't a concussion but that I had damage to my middle ear. I'm sure the GP said something about damage to the ‘crystals’ in my middle ear but I can't now be sure of exactly what the diagnosis was. It did however stay with me and I was dizzy for weeks afterwards. I had been down to play the next game for the Sirens, I turned up but when I got there, I couldn't face playing due to what had happened in the previous game. In fact, I've never played rugby again.” Although, in cross-examination, Ms Cook stated that there could be no certainty that the blow was administered by the Defendant because she had not seen the Defendant do it, I find that, on the balance of probability, she did so. In making this finding, I take into account my findings in relation to what has been termed “Incident 5” in the match on 8 October 2017, as to which see paragraph 11 below.
Sarah Louise Leicester states: “The whole team noticed Tash straight away. She was the ringleader. She was very vocal and swore a lot. She encouraged her team-mates to play aggressively. It was a bad-tempered game. There was one occasion during a line out when I heard Tash say, “as soon as they hit the floor, we're going to fucking smash them.” The game was fought hard and one of our players, Keeley, was involved in an off the ball tackle with Tash and broke her wrist as a result. We won the game, but I came away with a sour feeling. It made me question whether I wanted to play rugby again. After the first game Tash had left a lasting impression upon all of us. We were playing a developmental game and we were supposed to be helping each other learn. Tash was not there to help people learn about rugby. It seemed as though she was only interested in the physical side of the game. It was like she enjoyed hurting people. Tash is a good and incredibly strong player. She stands out against the other players in our league because of her size and attitude.”
After the game, the Claimant was nominated by the Sirens coaches as the “player of the match” for her performance.
The Game on 8 October 2017
For the new season starting in October 2017, both Sirens and Bracknell Ladies joined the league at the “developmental” level and their first game was against each other on 8 October 2017. As Mr Reynolds, the CEO of the Reading club, stated, although this was meant to be at the starter level for women's rugby, it was a competitive and physical game. He described the defendant, Tash, as
“far too good for the level the game was supposed to be at. She didn't have regard for the players she was coming into contact with. Throughout the match Tash played explosively and threw her weight around.”
Additionally, there was concern about the general approach of the Bracknell Ladies side towards the game, and the approach of the Defendant in particular. Thus, Sarah Leicester said:
“I heard Tash trying to psych out our players. She called us “cunts” and told us how she was going to “smash” us.”
Although the Defendant denied using such language, she accepted that there was “trash talk” with a lot of swearing and I find that this reflected the very different attitudes of the two teams, the attitude and approach of the Sirens being much more appropriate to the level of the game and the fact that the majority of the players on the field were still learning the game.
In this game, the claimant, who was 5 foot 3 inches in height and weighed 9 stone, played in the position of flanker with number 7 on her back. The game was video-recorded by Sirens, so that it could be used for coaching purposes. I have therefore had the advantage of watching the whole of the match, and in particular the tackle in which the claimant was injured, which was captured in full on the recording. Throughout the game, the defendant was executing what have been termed “dominant tackles”, namely tackles where the opposing player is driven backwards and onto the ground. The defendant is 5′5″ tall and weighed between sixteen and seventeen stone at that time. Sarah Leicester, who was...
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