Tom Clark v Omar Elbanna

In a sporting-negligence claim, the question is whether the defendant failed to exercise the degree of care appropriate in all the circumstances. The claimant need not prove recklessness. The rules of the sport are relevant but do not determine civil liability. A properly made finding of recklessness is a higher and more stringent finding which encompasses negligence. In a fast-moving contest, momentary carelessness or an error of judgment will not ordinarily establish breach. However, conduct which courts a foreseeable risk of forceful contact and serious injury may do so. Liability may be upheld where the trial judge’s factual findings establish the pleaded negligence, even though the judge did not expressly use the word negligent.

The respondent suffered serious spinal injuries after the appellant collided with him during an amateur rugby match. The respondent sued in negligence, alleging that the appellant’s conduct was unnecessary, reckless and dangerous and contravened the laws of rugby. The trial judge found that the appellant had run directly at the respondent at full speed, failed to slow or deviate, and collided forcefully with his back. He concluded that the appellant had been reckless and that liability was established.

The appellant appealed on limited grounds concerning recklessness, foreseeability, the adequacy of the judge’s reasons and the proper legal test in a sporting context. Permission to challenge the factual findings was refused. The respondent’s notice sought to uphold the result on the basis that the findings established negligence. The central issue was whether the judge’s findings and conclusion were sufficient to establish breach of the duty of care.

1. The appeal was dismissed and the Respondent’s Notice was upheld. The claim was pleaded and decided in negligence. Recklessness is not an independent cause of action in tort and is not required to establish negligence in a sporting claim.
2. The applicable standard is the degree of care appropriate in all the circumstances. The sporting context is important. The rules of the game are a relevant consideration, but compliance or non-compliance with them is not conclusive of civil liability: Condon v Basi [1985] 1 WLR 866. The standard remains objective, but is assessed in the circumstances of the particular contest.
3. Errors of judgment, oversights and lapses which may occur in a fast-moving and vigorous contest do not ordinarily establish liability. The threshold is high, and momentary carelessness cannot be characterised as negligence: Smoldon v Whitworth [1996] EWCA Civ 1225; Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054.
4. The trial judge’s findings supplied the factual basis for foreseeability and breach. The appellant ran directly at a player whose back was turned, had time to slow or alter his line, and instead courted the risk that slight movement would cause forceful contact. A resulting fall could reasonably be foreseen to cause a fracture and therefore serious injury.
5. The trial judge applied a higher and more stringent test by finding recklessness. That finding was unnecessary, but properly made on these facts it encompassed negligence. The failure specifically to use the word negligent did not prevent the pleaded negligence from being established. The remaining grounds of appeal required no determination.

• Court of Appeal (Civil Division): The appeal from the decision of Sweeting J dated 20 March 2024 was dismissed. The Respondent’s Notice was upheld.
• High Court of Justice: Sweeting J found liability established in favour of the claimant after a trial on breach of duty arising from the rugby collision.