Omar Elbanna v Tom Clark

In a negligence claim arising from sporting contact, the applicable standard is the objective standard of the degree of care appropriate in all the circumstances, judged in context. Where the trial judge directs himself by reference to that standard but concludes by using an unexplained reference to recklessness, the resulting lack of symmetry may justify permission to appeal so that the appellate court can determine what the judge decided and why. An appellate court will not grant permission merely to reopen clear findings of fact or to pursue a causation issue that was not live at trial.

The claimant, Mr Elbanna, brought a liability-only negligence claim against Mr Clark following a collision during a sporting match. By trial, causation was agreed and the only issue before Sweeting J was breach of duty. The parties agreed that the issue was whether Mr Clark had failed to exercise the degree of care appropriate in all the circumstances.

Sweeting J nevertheless expressed his conclusion at paragraph 33 by referring to recklessness, without explaining that concept or its relationship to the agreed negligence test. Mr Clark sought permission to appeal on several grounds, including the alleged error concerning recklessness, challenges to the factual findings and a causation point.

1. Permission to appeal. Permission was granted on grounds one, two and five, which formed a package concerning the trial judge’s reference to recklessness. The reference created an unexplained lack of symmetry between the agreed negligence framework and the conclusion. It was appropriate for the full court to determine what the judge decided and why.
2. Applicable legal standard. The agreed test was negligence: whether the defendant failed to exercise the degree of care appropriate in all the circumstances. It involved an objective assessment of reasonableness judged in context. That test was explained in Czernuszka v King [2023] EWHC 380 (KB), drawing on Condon v Basi [1985] 1 WLR 866. A detailed analysis of recklessness was unnecessary unless that concept was genuinely part of the decision.
3. Factual grounds. The trial judge’s findings of fact were clear and unassailable. He was entitled to prefer and rely on Mr Debney’s evidence. There was no sharp dividing line between an expert’s account of events on the pitch and the judge’s own assessment of whether the conduct was negligent. Grounds three, four and seven sought impermissibly to reopen the evidence and factual findings, so permission was refused.
4. Causation ground. Causation had been agreed and was no longer live. The reference at paragraph 33 to soft contact not causing injury was not reasonably arguable as a causation finding. The important findings were that the collision was avoidable or could at least have been reduced to soft contact. Permission was therefore refused on ground six.
5. A transcript of the ruling was directed to be included with the papers for the full court. The application for permission to appeal was allowed on grounds one, two and five.

• Court of Appeal (Civil Division): Permission to appeal was granted on grounds one, two and five and refused on grounds three, four, six and seven. The ruling directed that its transcript be placed before the full court.
• High Court of Justice: Sweeting J conducted a liability-only trial. Causation was agreed, and the live issue was whether the defendant had breached the duty of care. The judgment’s citation was not stated in the present ruling.