When is a breach of the laws of rugby negligent? When it is reckless? Tom Clark v Omar Elbanna [2025] EWCA Civ 776

This is a very interesting case that forms one of a small group of field-of-play rugby cases reported over the past few decades. At first instance it had been found that the Defendant had been negligent when running at pace into an opponent who did not have the ball and was not in a position to catch the restart kick that the Defendant was pursuing. The negligence had caused the Claimant to suffer spinal and other injuries.

 

A few takeaways from Stuart Brady:

 

1. As in Czernuszka v King [2023] EWHC 380 (KB) there probably could have been a case mounted for an intentional tort of battery. However, proving intent is difficult, and perhaps more importantly from a practitioner’s perspective, often a finding of intent will void the insurance policy (most likely that of the RFU in England) the claimant is seeking to recover against.
2. Cases like this on a breach of duty point are incredibly difficult to appeal. Here, the appellant Defendant appeared be limited in the arguments available to him on appeal: the Defendant’s argument was that at first instance the matter of foreseeability had not been sufficiently addressed and that based on the facts as found the type of injury suffered was not reasonably foreseeable thus the Claimant’s actions were not in fact “reckless” in the circumstances as the first instance judge, Sweeting J, had found. A classic “mixed-fact and law” type submission made when an appellant is, frankly, up against it.
3. “Recklessness” was pleaded and had been found at first instance with reference to the Defendant player when running at pace into a player without the ball who did not anticipate the contact because he was looking at the ball that was in mid-air travelling towards his team-mates having been kicked at a restart. As observed by Nicola Davies LJ, recklessness is not a requisite ingredient in a negligence claim where lack of reasonable care will suffice. A need to prove recklessness had been expressly rejected in the horse racing case of Caldwell v Maguire and Fitzgerald [2011] EWCA Civ 1054. However, in my view it is still a clever framing device on the part of a claimant in such claims if it is felt that it can be proven. As observed in the judgment, a finding of recklessness will, by extension, mean there was a lack of reasonable care.
4. The role of the rules and the specific circumstances are important, and not all violations of the rules will be negligent. Tuckey LJ in Caldwell is cited approvingly at para 17: it is not possible to “characterise momentary carelessness as negligence” and “there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required”. From that passage it ought to be clear how advantageous it is to gain a finding of “recklessness” at first instance. Additionally, in my view, a negligent method of conducting a core part of the game like tackling, rucking or competing at scrum or line out, is less likely to amount to “something more serious” than an “off the ball” incident as occurred here.
5. Also cited was the rugby case Smoldon v Whitworth [1996] EWCA Civ 1225 which stated the “the threshold of liability is a high one. It will not easily be crossed”. Proven recklessness therefore not only provided the required “something more serious” specified in Caldwell, but it also provides a good framing device for crossing the high-threshold specified in Smolden.
6. The “something more serious” will be with reference to the Laws of the Game. In other cases, it will be relevant that the laws of the game have changed in recent years to make the game safer.
7. The role of video evidence. Even though this was a game at lower levels, increasingly games are being video recorded. This means that the expert evidence, normally in such cases from the highest qualified referees, has an objective basis on which to comment. Meaning it ought to be easier to assess the liability position at an early stage and to successfully pursue appropriate cases. However, it was notable here, that even with that video and expert evidence, the first instance judge also relied on the account of a fellow player of the claimant who witnessed the off-the-ball contact and reacted instantly.
8. The referee had not seen this incident, and a citing process which included an appeal had decided to take no further action. Quite rightly that played no part in the Sweeting J’s determination at first instance, but one could see how that may be used tactically by a Defendant to argue against want of care or recklessness.

 

Stuart Brady has a busy personal injury, clinical negligence, disease and sports law practice and has acted in a number of matters that straddle these disciplines.

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