Vowles v Evans
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Morland,Mr Justice Morland |
| Judgment Date | 13 December 2002 |
| Neutral Citation | [2002] EWHC 2612 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CF120009 |
| Date | 13 December 2002 |
[2002] EWHC 2612 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CARDIFF DISTRICT REGISTRY
To be handed down at The Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Morland
Case No: CF120009
Mr Ian Murphy Q.C. and Mr Jonathan Bellamy (instructed by J. Peter Davies & Co) for the Claimant
Mr John Leighton Williams Q.C. and Mr G. Treverton-Jones Q.C. (instructed by Morgan Cole) for the First and Second Defendants
Mr Wyn Williams Q.C. and Mr Christian Du Cann ( instructed by Hugh James for Sixth and Seventh Defendants.)
Hearing dates:14 Oct –18 Oct 2002 (At Swansea) and 6 Nov 2002 (At Mold)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Judgment.
On the 17 th January 1998 the claimant, then aged 24 sustained a dislocation of the neck with resultant permanent incomplete tetraplegia. He is now wheel chair bound.
The injury occurred in the last moments of injury time when the scrums of Llanharan and Tondu 2 nd XV were engaging. The Claimant was the Llanharan hooker.
The claimant sues in negligence the first defendant, the referee, for whom the second defendants accepted vicarious liability, and the sixth and seventh defendants in a representative capacity respectively as the chairman and honorary secretary of the Llanharan Rugby Football Club. My task is to determine whether the claimant has established liability.
Despite the passage of years and the late date when many of the witness statements were taken there is little or no dispute as to the general picture of the events before and during the match
Llanharan against Tondu was a local derby. The first XV's were playing against each other on Tondu's ground. The second XV's were playing against each other at Llanharan's ground.
The claimant's brother had been selected as the hooker for Llanharan 2 nd XV but on the morning of the match he was called up to be a reserve front row substitute for Llanharan 1 st XV. In consequence the claimant who came to the ground expecting to be a reserve front row substitute found himself to be playing as the 2 nd XV hooker.
Despite the efforts of Derek Brown, the 2 nd XV coach, assisted by Kevin Jones, its captain, no specialist front row forwards could be found to be on the bench to act as replacements if needed in case a Llanharan front row forward was injured.
Both 2 nd XV's were wholly amateur although their first teams were professional or at least semi professional. The first teams were in the first division of Welsh Rugby Clubs but ranked below such premier division clubs as Cardiff, Maesteg and Bridgend etc.
There had been a lot of rain. The pitch was in a very bad condition. It was variously described as muddy, boggy or very boggy. It was clearly going to be a forwards game. So it proved. There were very many set scrums. The final score was 3 nil, a solitary penalty goal kicked by Llanharan. The game was hard fought but not dirty.
After about twenty minutes into the first half Tondu's tight-head prop was replaced by a substitute, Neil Bryant, a young but strong and trained front row forward. The replacement may have been tactical.
About ten minutes or so later Bryant's opposing Llanharan loose-head prop Gavin Marsh went off with a dislocated shoulder. Llanharan had a problem. They had no experienced or trained front row forward to take Marsh's place.
In the event Christopher Jones, who was the pack leader and had been playing as a flanker, took Marsh's place as loose-head prop. Jones was a regular 1 st XV player but had been off injured. He had returned after injury to play in this match. He had never been trained as a front row forward but had played some years earlier occasionally in the front row in low level games. He said that he was prepared to give it a go. He was a strong man and must have been moderately successful as a loose head prop in set scrums because there was no evidence that the ball ever came out against the head.
In injury time at the end of the second half Llanharan were leading three nil but Tondu were attacking strongly Llanharan's line. There were a number of set scrums at five metres. The Tondu pack was the stronger and was hoping for a pushover try that would give them the match.
It was to have been the final set scrum before no side. The front rows failed to engage properly. The first defendant blew his whistle. As the scrum parted, the claimant collapsed to the ground.
The crucial factual questions which I have to determine are how and why the two front rows failed to engage properly and whether the claimant has established on the balance of probabilities that Jones' lack of prop technique was a material cause of the failure to engage properly.
Assuming those factual questions are answered in the claimant's favour a number of legal issues and issues of mixed fact and law arise.
Does the referee of an adult rugby match owe to the players a duty to take reasonable care for their safety when carrying out his duties as referee?
Mr Leighton Williams Q.C. for the first and second defendants boldly submitted that I should hold that as a matter of policy no such duty exists.
He submitted that there was no U.K. decision that an amateur rugby referee owed a duty of care to players in an adult game of rugby. Smolden v. Whitworth [22002] PIQR 137 was distinguishable because there the existence of a duty of care in a colts game was conceded. He referred me to the threefold test enunciated in Caparo v. Dickman [1990] A.C. 605 of foreseeability, proximity and whether it is fair, just and reasonable that there should be such a duty and dicta of Saville L.J. in the Marc Rich case [1994] 3All E.R 686 at page 693A commenting upon Caparo that it was a "pragmatic question whether a duty should be imposed in any given case," approved by Lord Steyn [1996] A.C.211 at page 236A.
Mr Leighton Williams submitted that whether it was fair, just and reasonable to impose a duty upon a referee would depend upon a number of factors including the interests of rugby as a game and the overall public interest. He stressed that the match was an amateur game. He submitted that the imposition of a duty of care upon an amateur referee would discourage participation in rugby by amateur referees, officials and players.
I do not consider it logical to draw a distinction between amateur and professional rugby. In the professional game a front row forward is likely to be better trained, fitter and have more specialist techniques than his amateur counter part. In the professional game teams will have on the bench or in the team sufficient substitutes to replace a front row forward who is injured or sent off. I consider that the risk of very serious spinal and cervical injuries to front row forwards is more likely to occur in the amateur rather than the professional game albeit that such occurrences are extremely infrequent.
Mr Leighton Williams submitted that I should balance the interests of the injured player against the interests of the referee and the Welsh Rugby Union who it was submitted, had an interest in protecting their financial assets which they can only protect by expensive insurance when, it is said, rugby is very under funded. It is open to a player to protect his own interests by insurance cover. The amateur player plays rugby for enjoyment despite knowing the risks involved.
In my judgment when rugby is funded not only by gate receipts but also by lucrative television contracts I can see no reason why the Welsh Rugby Union should not insure itself and its referees against claims and the risk of a finding of a breach of duty of care by a referee where "the threshold of liability is a high one which will not easily be crossed". Amateur rugby players will be young men mostly with very limited income. Insurance cover for referees would be a cost spread across the whole game.
Mr Leighton Williams rightly submitted that the referee does not create the risk of injury but in my judgment is so far as he can stop that risk becoming a reality by appropriate application of the laws it is not unreasonable to expect him to do so. I accept that rapport between referee and players is crucial to a good game of rugby but I do not see why that rapport will be lessened because both referee and players know that the referee owes a duty of care for the safety of the players; a duty to be performed by appropriate and sensible application of the laws of rugby in the context of the ebb and flow of a hard fought physical contest.
Mr Leighton Williams accepted that the most dangerous place in a game of rugby is the front row of the scrum and this is recognised in the laws of the game.
The Welsh Rugby Union published the 1997 edition of the Laws of the Game of Rugby Football with instructions and notes on the laws as framed by the International Rugby Football Board. Law 3 covers the number of players and the replacement and substitution of players. Law 3 (5) reads:—
"Any team must include suitably trained/experienced players as follows
(e) if a team nominates 16. 17 or 18 players it must have four players who can play in front row positions."
Law 3(9) The replacement of an injured player should be made only when the ball is dead and with the permission of the referee."
Law 3(12) Special Circumstances
In the event of a front row forward being ordered off or injured or both, the referee, in the interests of safety, will confer with the captain of his team to determine...
To continue reading
Request your trial
-
Symon Petrou v (1) Marcio Bertoncello (Defendants/Applicants) (2) James dell and Another
...care as a mere incidence of their membership. All parties accept that the relevant principles are those in the judgment of Moreland J in Vowles v. Evans [2002] EWHC 2612 (QB) at paragraph 86: "The propositions were:— (i) At common law an unincorporated members club or its officers or commit......
-
Tort, Insurance and Incoherence
...loss-spreading, via insurance, as a positivereason for imposing liability in neg-ligence.9 [20 03] EWCA Civ 318; [2003] 1W LR1607.10 [2002] EWHC 2612(QB). Quoted by CA, ibidat 23.11 ibid12.12 [1959] AC 6 04, 627.Tort, Insurance and Incoherence386 rThe Modern LawReview Limited Gwilliam v Wes......