Smoldon v Whitworth

JurisdictionEngland & Wales
Judgment Date17 December 1996
Date17 December 1996
CourtCourt of Appeal (Civil Division)

Court of Appeal

Before Lord Bingham of Cornhill, Lord Chief Justice, Lord Justice Mummery and Sir Brian Neill

Whitworth and Another

Sport - referee - duty of care to rugby players - level of care required

Circumstances vital to level of care required of rugby referee

The level of care required of the referee of an under-19 colts rugby football match towards a player was that appropriate in all the circumstances, taking full account of the factual context in which he was exercising his functions as a referee.

That context included his responsibility to protect players' safety and to apply the rules of the game in force at the time, in particular, those designed to minimise the acknowledged risk of serious spinal injury resulting from scrum collapse.

Where, therefore, a referee failed to take appropriate steps under the rules to prevent scrum collapse so that the plaintiff suffered serious spinal injury the referee was liable for that foreseeable consequence of his breach of duty.

The Court of Appeal so held, dismissing an appeal by the second defendant, Michael Nolan, from Mr Justice Curtis (The Times April 23, 1996) who had made a finding of liability against him in respect of his refereeing of an under-19 colts match on October 19, 1991, in which the plaintiff, Benjamin Smoldon, then aged 17 1/2 and the captain and hooker of the Sutton Coldfield Colts, was seriously injured when his neck was broken in a collapsing scrum during a match against the Burton Colts.

The plaintiff did not appeal against the judge's dismissal of his claim against the first defendant, Thomas Whitworth, a fellow player.

Mr Richard Davies, QC and Mr Neil Block for the referee; Mr Peter Andrews, QC and Mr Philip Lehain for the plaintiff.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that although earlier cases had explored the duty owed by one sporting participant to another (see Rootes v SheltonUNK ([1968] ALR 33); Condon v BasiWLR([1985] 1 WLR 866) and Elliott v Saunders (unreported, QB, June 10, 1994)) and that owed by a sporting participant to a spectator (for exampleWooldridge v SumnerELR ([1963] 2 QB 43) and Wilks v Cheltenham Homeguard Motor Cycle and Light Car ClubWLR ([1971] 1 WLR 668), there appeared to be no previous case in which a rugby football player had sued a referee in negligence.

The present case was of obvious importance to the plaintiff whose capacity for active and independent life had been blighted, but it was also of concern to many who feared that the judgment for the plaintiff would emasculate and enmesh in unwelcome legal toils a game which gave pleasure to millions.

His Lordship referred to the context in which the issues arose:

1 That rugby football...

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8 cases
  • Caldwell v Maguire
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 Junio 2001 the relative calm of the workshop. 20 The last, and the most important of the cases considered by Holland J, is Smoldon v Whitworth (1997) ELR 249. In that case the claimant sued another player and a referee at a rugby match in which he was badly injured when the scrum collapsed. The cla......
  • Vowles v Evans
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 Marzo 2003
    ...consider that Mr Leighton Williams can derive any assistance from the former. 21 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 o......
  • David Sharp V. Highland And Isalnds Fire Board+steven Mclean
    • United Kingdom
    • Court of Session
    • 18 Agosto 2005 the circumstances. Counsel discussed Wooldridge v Sumner [1963] 2 QB 43; Condon v Basi [1985] 1 WLR 866; Smoldon v Whitworth [1997] PIQR P133, [1997] ELR 249; and Caldwell v Maguire [2001] EWCA Civ 1054, [2002] PIQR P6. [22]It is accordingly common ground between the parties that the sec......
  • Dani Laura Chelsea Czernuszka (Nee Watts) v Natasha Mercedes King
    • United Kingdom
    • King's Bench Division
    • 23 Febrero 2023 the Court of Appeal failed. 40 In the course of his judgment at first instance, Holland J referred to the case of Smoldon v Whitworth (1997) ELR 249. In that case the claimant sued another player and a referee at a rugby match in which he was badly injured when the scrum collapsed. The c......
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1 firm's commentaries
  • On-field Negligence in Sport: The English High Court rules in Czernuszka v King
    • United States
    • LexBlog United States
    • 8 Marzo 2023
    ...conduct complained of must be reckless or demonstrate a very high degree of carelessness”[13], instead citing Smoldon v Whitworth & Nolan (1997) ELR 249 (a case where a rugby player’s neck was broken during a collapsed scrum) as example of where the Court of Appeal expressly rejected the ne......
5 books & journal articles
  • A Different Ball Game—Why the Nature of Consent in Contact Sports Undermines a Unitary Approach
    • United Kingdom
    • Journal of Criminal Law, The No. 71-6, December 2007
    • 1 Diciembre 2007
    ...risks which are inherent in that sport . . . but this does noteliminate all duty of care of the one participant to the other’.147 [1997] ELR 249.148 Smoldon v Whitworth and Nolan [1997] ELR 249.149 [2003] EWCA Civ 318.150 McCord v Swansea City AFC Ltd, The Times (11 February 1997), per Ian ......
  • Winner All Right? Liability in Tort For Injury in Sport
    • Ireland
    • Trinity College Law Review No. VI-2003, January 2003
    • 1 Enero 2003
    ..."The threshold of liability is a high one. It will not be easily crossed". (Citing Bingham L.C.J. as he then was in Snioldon v. Whitworth [1997] ELR 249, where a rugby player who suffered injury when a scrum collapsed failed in his action against an opposing player). Bingham L.C.J. rejected......
  • Consent and the Rules of the Game: The Interplay of Civil and Criminal Liability for Sporting Injuries
    • United Kingdom
    • Journal of Criminal Law, The No. 69-5, October 2005
    • 1 Octubre 2005
    ...Fitzgerald [2001] EWCA Civ 1054,[2002] PIQR 6. 22 Blake v Galloway [2004] EWCA Civ 814, [2004] 1 WLR 2844 at [13–15].23 Ibid. at [16].24 [1997] PIQR 133. 418 Consent and the Rules of the the same position, he cannot possibly be said to have consented to a breachof duty on the part of the of......
  • Swallows and Amazons, or the Sporting Exception To the Gender Recognition Act
    • United Kingdom
    • Social & Legal Studies No. 17-1, March 2008
    • 1 Marzo 2008
    ...(1977) 400 NYS 2d 267San Francisco Arts and Athletics v United States Olympic Committee (1987) 483 US 522Smoldon v Whitworth and Nolan [1997] PIQR 133Watson v British Boxing Board of Control [2001] QB 1134 REFERENCES Anderson, Jack (2006) ‘An Accident of History: Why the Decisions of Sports......
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