Smoldon v Whitworth & Anor

A referee who owes a player a duty of care must exercise the care and skill appropriate to all the circumstances. The practical content of that duty reflects the referee’s responsibility for player safety and the demands of a fast-moving, vigorous contest. The threshold for liability is high: ordinary errors of judgment, oversights and lapses will not suffice.

Liability may nevertheless arise where a referee persistently fails to enforce safety rules intended to prevent a foreseeable injury. The statistical rarity of that injury does not preclude recovery when the breach produces the very kind of harm which the rules were designed to prevent. A player accepts the ordinary incidents of the sport, but does not thereby consent to a referee’s breach of that protective duty.

A 17-year-old rugby player suffered catastrophic spinal injury when a scrum collapsed during an under-19 match. Curtis J found the referee liable for failing to control the scrummaging, enforce the prescribed crouch-touch-pause-engage sequence and prevent an abnormal number of collapses. The claim against an opposing player was dismissed.

The referee appealed. He challenged the applicable standard of care, the judge’s factual conclusions and causation. He also contended that the player had voluntarily accepted the risk. The central issues were the standard governing a referee’s liability, whether the findings established breach and causation, and whether the defence of volenti non fit injuria applied.

1. Appeal dismissed. In the judgment of the court, the judge correctly applied a standard requiring the care and skill appropriate in all the circumstances. Although the threshold of liability is high, it is not limited to deliberate conduct or reckless disregard. Proper allowance must be made for the split-second decisions, errors of judgment and oversights inherent in refereeing a fast-moving and vigorous match.

2. The referee’s position differed materially from that of a sporting participant in relation to a spectator. A competitor may properly concentrate almost entirely upon winning, whereas a referee has responsibility for safeguarding players. The legal standard remains reasonable care in the circumstances, but its practical content changes with the relationship. Wooldridge v Sumner [1963] 2 QB 43 and Wilks v Cheltenham Homeguard Motor Cycle and Light Car Club [1971] 1 WLR 668 were therefore consistent with the court’s conclusion.

3. The judge was entitled to find a sustained failure to enforce the crouch-touch-pause-engage sequence and to control an abnormal number of collapsed scrums. Those findings, supported by contemporary evidence and expert testimony, established a failure to exercise the care and skill reasonably expected of a referee conducting an under-19 match. The referee had not exhausted the disciplinary and preventive measures available to him. Although prematurely ending the match was a measure of last resort, the judge’s limited reliance upon that possibility did not undermine the finding of breach.

4. The scrummaging rules were intended to minimise the known risk of spinal injury from collapsing scrums. Serious spinal injury was foreseeable. Where failure to take appropriate preventive steps caused a collapse and produced the kind of injury which the rules sought to prevent, liability was not excluded because that outcome was statistically unlikely.

5. The defence of volenti non fit injuria failed. A player accepts the ordinary incidents of rugby, but does not consent to a referee’s breach of safety duties arising from rules framed for players’ protection. The position might require reconsideration if the injured player had been a principal cause of the dangerous collapses, but the judge had found neither improper play nor contributory negligence by this player.

1. Court of Appeal (Civil Division): The referee’s appeal was dismissed with costs and legal aid taxation. The court upheld the finding that his failure properly to control the scrummaging caused the player’s injury.

2. High Court of Justice, Queen’s Bench Division: Curtis J found the referee liable on 19 April 1996. The claim against the opposing player was dismissed, and no appeal was brought from that dismissal.