Vowles v Evans

A rugby referee owes a duty of care to players, including in amateur matches. The voluntary and inherently dangerous nature of rugby does not make it fair, just and reasonable to impose no duty. The standard is contextual and demanding: ordinary errors of judgment in a fast-moving contest do not ordinarily create liability, but the referee must exercise the ordinary skill of a competent referee. Under Law 3(12), a referee may permit a player to be tried in the front row only where the player is suitably trained or experienced for that position. The referee must decide when safety requires non-contestable scrums and cannot leave that responsibility to the team.

The respondent, a rugby hooker, suffered permanent incomplete tetraplegia when a scrum failed to engage cleanly during an amateur match. He brought proceedings against the referee and the Welsh Rugby Union, which accepted vicarious liability if the referee was liable. Morland J found that the referee owed a duty of care, breached it by permitting an unsuitable player to act as a front-row prop, and caused the injury. The appellants challenged all three findings. The central issues were whether an amateur referee owed a duty of care, the applicable standard, the proper construction and application of Law 3(12), and causation.

The Court dismissed the appeal and upheld the judgment against the referee and the Welsh Rugby Union.

1. Duty of care. The parties correctly proceeded under the three-stage approach in Caparo Plc v Dickman [1990] 2 AC 605. Foreseeability and proximity were conceded. It was fair, just and reasonable to impose a duty because players depend on referees to enforce rules directed to safety. Voluntary participation in a dangerous sport did not, by itself, exclude the duty. Agar v Hyde [2001] HCA 41; 201 CLR 552 was distinguishable: its conclusion concerned the remoteness of the relationship between rugby administrators and players worldwide, over whom the administrators had no control.
2. Standard of care. The standard depended on all the circumstances, including the nature of rugby and the speed of play. Consistently with Smoldon v Whitworth & Nolan [1997] PIQR p.133, the threshold was high and ordinary errors, oversights and lapses in a vigorous contest would not ordinarily suffice. Applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the referee had to exercise the ordinary skill of a competent referee appropriate to the match.
3. Law 3(12). The referee could permit a player to be tried in the front row only if there was reason to believe that the player was suitably trained or experienced for front-row play. The referee retained responsibility for deciding whether non-contestable scrums were mandatory. Mr Evans had not made the necessary enquiries and had improperly left the choice to the team. His breach occurred while play was stopped and there was time for considered decision-making.
4. Causation and appellate review. The evidence entitled the trial judge to find that the inexperienced player materially contributed to the deteriorating scrummaging, the mistimed engagement and the injury. The Court applied the appellate restraint described in Assicurazioni Generali Spa v Arab Insurance Group [2002] EWCA Civ 1642. The appellants were ordered to pay the respondent’s costs. Leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Appeal dismissed, affirming the judgment below.
2. High Court of Justice, Queen’s Bench Division: Morland J gave judgment for the respondent on 13 December 2002, finding duty, breach and causation.