The High Court decision in Elbanna v Clark [2024] EWHC 627 (KB) (“Elbanna”) serves as a useful reminder, and a warning, that sportspeople can be held legally responsible for tackles on the pitch. This article will explore the decision that resulted in a sportsperson being held liable in negligence for a collision during a rugby match. This article will then consider the most recent developments in this matter, Elbanna v Clark (Re Consequential Matters) [2024] EWHC 1471 (KB) (“Elbanna (Consequential Matters)”).
Facts
The Claimant and Defendant were participants in an amateur rugby match, played under Rugby Football Union laws. Unusually, this particular match was being filmed to train the match referee. During this match, the Defendant ran and collided into the Claimant. As a result, the Claimant sustained a serious spinal injury at the C5/C6 level. The Claimant sought damages for the injuries he sustained as a result of the Defendant’s alleged negligence. Prior to the trial, the Defendant had admitted causation in so far as the Claimant had suffered an acute injury as a result of the collision. The trial proceeded on the preliminary issue of liability.
The Claimant’s Case
The Claimant’s case was that the Claimant did not move significantly before the collision and the Defendant had deliberately impacted the Claimant from behind.
The Defendant’s Case
The Defendant maintained that he ran forward to try to get the ball after it had been kicked and he had tried to avoid the Claimant. The Defendant’s evidence was that, just before contact, the Defendant had moved to the right to avoid a collision as the Claimant had “moved into his path”. The Defendant contended that if the Claimant had not moved, then he would have run straight past him. The Defendant denied that the collision was deliberate.
The Experts’ Opinion
Both parties called experts to give evidence as to the relevant laws of the game and their application to the collision. The experts focused on Law 10.4(e) characterises “playing an opponent without the ball” as dangerous play. The experts also provided their commentary on the video footage with each coming to different conclusions on what they saw. The Claimant’s expert considered that the Defendant intended to collide with the Claimant’s back in a targeted move. The Defendant’s expert concluded that the collision was caused by the Claimant moving in a perpendicular direction.
Judgment
Mr Justice Sweeting held that the Defendant had breached his duty of care. In forming this decision, the Judge made a number of findings. In particular:
1. The Judge held that the Claimant had stayed perfectly still during the Defendant’s run towards him;
2. The Judge found that a collision between the players was not inevitable, but it required the Defendant to reduce his speed or alter his line;
3. The Judge held that the Claimant could not have seen the Defendant running towards him and did not have the opportunity to prepare for the impact;
4. The Judge rejected the Defendant’s evidence that he had moved to his right as it “lies uneasily with what can be seen on the video recording”; and
5. The Judge preferred the evidence of the Claimant’s expert who concluded that: 5.1. A “player of the Defendant’s stated experience should have known how to avoid contact with the Claimant”; and 5.2. The video showed the Defendant made “no attempt to slow down, deviate away from the Claimant or soften the contact”.
The Judge held that running at full speed directly at the Claimant and colliding with him was both deliberate and reckless. The Judge held that this amounted to playing an opponent without the ball in contravention of the laws of rugby and courted the risk of injury.
Useful Principles Arising from the Decision
This decision reminds us of the following principles:
1. Sportspeople, including amateur players, are not immune from findings of negligence for their actions “on the pitch”;
2. As per Czernuzka v King [2023] EWHC 380 (KB) the requirement to establish recklessness is not required for a breach of duty of care. The test in a sporting context is whether the Defendant failed to exercise such degree of care as was appropriate in the circumstances; and
3. In accordance with Fulham v Jones [2022] EWHC 1108, a breach of the rules of a sport will not necessarily result in a finding of negligence. Indeed, “the Rules on the Game of Association Football have not been drafted with civil liability in mind”. However, a breach of the rules is one relevant factor to consider in determining whether there was a breach of duty.
An Attempt to Appeal
Elbanna appears to be the case that keeps on giving. Elbanna (Consequential Matters) provides guidance in respect of applying for permission to appeal.
The parties were told that the judgment in Elbanna would be handed down on 20 March 2024 following a draft judgment being circulated some days before. On the same day as the hand down, the Defendant’s Solicitor sent an e-mail to the Court that there were other matters to be addressed and suggesting that the hand down was delayed until another day. There was, in this e-mail, no indication that the Defendant was seeking permission to appeal or an extension of time for doing so. On 10 April 2024, the Defendant filed a Notice of Appeal with the Court of Appeal without having finalised the Order with the Claimant. In an attended hearing on 7 June 2024, the lower Court held that:
1. The Notice of Appeal was lodged at the end of the 21-day period for appealing;
2. There is firm guidance in Re T (A Child) [2022] EWCA Civ 1736 that the usual course should be that an application for permission to appeal is made before the trial judge;
3. The Claimant’s Solicitor was not copied into e-mail correspondence between the Court of Appeal by the Defendant’s Solicitor contrary to Civil Procedure Rule 39.8, which required any communication with the Court to be copied to the other party save in limited circumstances;
4. Following McDonald v Rose [2019] 1 WLR 2828, a party wishing to apply to the lower court for permission to appeal should do so at the decision hearing itself. The Judge held that hand down on 20 March 2024 was the ‘decision hearing’. Furthermore, the email sent on 20 March 2024 by the Defendant’s solicitors did not address the appeal issue. As such, the court no longer had jurisdiction to hear an application for an extension of time or for permission to appeal; and
5. In any event, even if the Judge were wrong, permission to appeal would have been refused on the basis that he had been entitled to reach his own findings of fact on the evidence before him at trial.
The Part 36 Offer
The Claimant made a Part 36 offer as follows: “The Claimant will settle the issue of liability in this claim on the basis that the Defendant will accept 75% of the Claimant’s claim for damages to be assessed”. The Judge held that the offer was not effective so as to give rise to the Part 36 consequences which would otherwise follow from the Claimant’s success at trial. In reaching this decision, the Judge held that the reference in the offer to “liability in the claim” may refer to both issues of breach of duty and causation. There was a need for precision about exactly what the offer related to. This was compounded by the Claimant’s failure to provide clarification about the offer, when the Defendant’s Solicitor informed the Claimant a few days after the offer was made that the offer was not clear.
Thoughts
The following are some key takeaways from the case of Elbanna and Elbanna (Consequential Matters):
1. Do not underestimate the value of evidence. As with most negligence claims, liability turns on its facts and, accordingly, evidence is key to establishing the facts. This Judgment hinged on both video footage and expert evidence. It is imperative to ensure timely recovery of CCTV and other visual/audio footage that may assist your client. The Judge ultimately preferred the Claimant’s expert evidence as it was in line with the video footage. Generally, experts should be shown key pieces of evidence, such as video footage, and asked to comment upon the same in their report.
2. Ensure you are familiar with the legal process and procedural issues surrounding appeals. This case emphasises the importance of complying with procedural requirements, particularly those in respect of applications for permission to appeal. Indeed, practitioners should be wary of not seeking permission to appeal from the trial judge and, in any event, must ensure compliance with the 21-day appeals period. As always, a failure to comply may result in cost implications.
3. Communicate, communicate, communicate! This case illustrates the consequences of failing to communicate. It is trite that draft orders should be drafted and agreed as soon as practicable. It is advisable, in practice, to communicate timeframes with other parties in order to prevent matters becoming drawn out and/or overlooked. In respect of communications with the Court, other parties should be copied into any such correspondence save for exceptional circumstances. Finally, the Claimant’s failure to provide clarification of the Part 36 offer when asked to do not only demonstrates the lack of communication but also the costs consequences of the same.
Don’t fall foul of the formalities for a valid Part 36 offers. This decision reminds parties of the need for clear wording in Part 36 offers. Offers should be clear as to whether it extend to breach of duty, causation or both. For more guidance on Part 36 offers, please read “The Dos and Don’ts of Part 36 Offers” – https://www.normantonchambers.com/wp-content/uploads/2021/05/Shoshana-Mitchell_Part-36-Offers-Article.pdf.
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