The Liverpool Law Review Vol. XVlII(l) [1996]

FAIR PLAY OR SPOILED SPORT: THE LEGAL OBLIGATIONS OF THE REFEREE

Introduction

In sports .... recognition of certain dangers of injury is steadily imposing rule changes .... with consequential effects on the referee's supervisory functions. In rugby union, for example ..... scrum collapses are about as welcome as doping in athletics. If, let us say, three scrum collapses occur without i nc iden t - or pena l ty - and a player is made a paraplegic the fourth time, is it a valid question whether the referee may have failed to discharge a duty of care. 1

There is something tragically prophetic in these words from 1989, in light of the action in Smolden v. Whitworth and another 2 heard before Mr Justice Curtis in the Queen's Bench Division of the High Court on April 19th of this year. As a result of this decision, on an issue hitherto unlitigated in the English courts, 3 certain belief in the legal immunity of the referee must now be regarded as misplaced.

The Facts

The plaintiff Benjamin Roger Smolden was playing the position of hooker in an amateur game of Colts, under 19 year olds, rugby on the 19th of October 1991. The game was between Sutton Coldfield RUFC and Burton on Trent RUFC. It was an overtly ill tempered and physical encounter with numerous punches thrown, wrestling and head-butting. The spectators indicated in testimony, that in their opinion "each side gave as good as it got". The referee, Mr Nolan, had already had cause to send two players from the field for aiming or landing blows on

opponents in unrelated incidents. Scrummages had collapsed upwards of twenty five times, and two other players on the field sustained minor neck injuries. The impact between the players during the formation of

1 G.M. Kelly, "Prospective Liabilities of Sport Supervisors", The Australian Law Journal 63 (October 1989), 669-685, at 679.

2 The Times, 23rd April 1996. 3 Nor, as Curtis J. noted in his judgment, litigated anywhere in the common

law.

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the scrums was specifically referred to in terms of "charging" and "coming in hard."

Ten minutes from the end of the game a scrummage collapsed for the third time in quick succession and as a direct result of this collapse the plaintiff fell to the ground with his neck broken. In light of his injuries and the manner in which they were sustained he commenced an action against the first defendant, a player and his opposing number on the field, alleging that the first defendant had caused the scrummage in question to collapse. In addition, or alternatively, he commenced an action against the second defendant, the referee, alleging that he had failed to exercise a sumcient degree of control over the proceedings, as a consequence of which the plaintiff sustained serious injury.

The Decision

As against the first defendant liability was not established for the reason that Curtis J. decided that no one player could be identified as being singularly responsible for the critical collapse. More significantly, as against the second defendant, the referee, Curtis J. held that a referee owes a duty of care to the participants on the field of play, and can be liable for injuries sustained by a player as a result of his failure to exercise the required degree of control over proceedings. This is the case despite the fact that no first party opponent was held to be liable in the circumstances whereby injury occurred. Mr Justice Curtis was at pains to insist that this decision was arrived at wholly and particularly on the facts of the case before him, i.e an amateur Rugby Union encounter at Colts (under 19's) level, refereed according to the prevailing rules and customs of the game in the 1991-92 season. He specifically referred to the fact that the rules relating to the phased formation of the scrummage, "Crouch - - Touch - - Pause - - Engage", which applied at this level, were modified to reflect the known risk of severe neck and spinal injury occurring should the scrum collapse. The referee was required to exercise reasonable skill and care to enforce the laws of the game and to control the match so as to ensure that players were not exposed to unnecessary risk of injury. On the facts, the scrum had collapsed substantially more often than would be expected in a game refereed to the appropriate standard. In addition, at this level the safety of young players should be of paramount concern; immature necks being particularly vulnerable as fatigue develops in the latter stages of a

Fair Play or Spoiled Sport: the Legal Obligations of the Referee 83

contest. In failing repeatedly to dictate proper conduct or employ appropriate sanction - - warning words, caution, dismissal - - the referee had neglected to effectively don his "preventative mantle" and sufficiently derogated his duty so as to be negligent.

Curtis J. denied that there were any public policy considerations which should preclude him from imposing a duty in these circumstances, and rejected counsel's invitation to apply the "Bolam" test, that is the test of the "ordinary skilled man exercising and professing to have that special skill", 4 to the actions of the referee. He Was prepared in this specific instance to adopt the heightened degree of forseeability test proposed by Lord Mackay in Smith v. Littlewoods Organisation Ltd., 5 that is, where the injury or damage was caused by independent human agency, the particular loss must be highly probable or very likely. In reaching a result he evidently found that such a standard had been satisfied on the facts before him. The plaintiff, Benjamin Roger Smolden who suffered severe spinal injuries was therefore able to recover against the second defendant.

Despite the forthrightness of this judgment, whether referee or participant can be clear as to the extent of their responsibilities remains questionable. Although Curtis J. was explicit that liability had been established against the referee in the highly specific circumstances of the case, scope exists within the ratio of the decision, particularly given the growing commercialisation of sport, for keen litigators to exploit a judgment which flip flops uncertainly between questions relating to the existence of a duty of care, and factors relevant to defining the applicable standard of care. A questionably meritorious outcome on the facts becomes less satisfactory still when the judge readily accepts the analogy counsel invites him to draw with those other well known sporting negligence cases, Condon v. Bas/6 and Wooldridge v. Sumner, 7 where the nature of the relationship between the parties seems wholly different. As a consequence the spectre of defensive refereeing destroying the spectacle of competitive sport becomes a real and unwelcome possibility.

4 McNair J. in Bolam v. Friern Hospital Management Committee [ 1957] 2 All E.R. 118at 121.

5 Smith v. Littlewoods Organisation Ltd [1987] 1 All E.R. 710. 6 Condon v. Basi [1985] 2AIlE.R. 453. 7 Wooldridge v. Sumner [1962] 2 All E.R. 978.

84 The Liverpool Law RevlewVol. XVIH(1) [1996]

The Analysis

The judgment in Smo/den v. Whitworth and another completes a hattrick of circumstance relating to potential negligence liability in the sporting arena. The basis upon which a spectator is owed a duty of care by a sportsman in the cauldron of competition was outlined in the well known case of Wooldridge v. Sumner andAnother 8 following the court in Hall v. Brooklands Auto Racing Club,. 9 In essence in the "best tradition

�9 of sporting competitive endeavour", 10 a competitor exercising reasonable skill and competence, can pursue the goal of victory with utmost determination provided that he does not deliberately "intend to injure someone whose presence is known or is reckless and in disregard of all the safety of others." 11 The reasonable spectator who thrills in spills appreciates that, in pursuing glory, reasonable competitors take reasonable risks. The rules of the game provide an indicative framework within which the reasonableness of a particular action can be assessed. Whether for example a horseman, who whilst manoeuvring his mount at speed, loses control and collides with a spectator, has conducted himself negligently or not, may depend on whether he is participating in a three day event, dressage competition, or entering the final furlong of the Derby.

The extent to which a player can be held to have negligently inflicted injury on a fellow competitor is determined by the judgment of Sir John Donaldson M.R. in Condon v. Basi. 12 Sir John was unconcerned whether the issue of liability was decided on the basis of a duty of care modified to reflect the implied consensual basis upon which competing participants engage one another, 13 or whether there is a general duty of care to take all reasonable account of the circumstances in which you are placed. 14 He was happy to conclude that the horrendous sliding tackle with which the defendant Gurdaver Basi broke the leg of his opponent James Condon in this case, indicated a failure on his part to exercise the

8 Ib id . 9 Hall v. Brooklands Auto Racing Club [1932] All E.R. 208. 10 Sellers L.J. at 982b. 11 Sellers L.J. at 983h. 12 [1985] 2AllE.R. 453. 13 After Barwick C.J. in Rootes v. Shelton [1968] ALR 33. 14 After Kitto J. in Rootes v. Shelton, ibid.

Fair Play or Spoiled Sporu the Legal Obligations of the Referee 85

appropriate degree of care upon either basis. Once again the extent to which the rules of the game had not been complied with, were instruct- ive for the court in deciding the standard of care to be demanded. 15

In short in these situations, although the courts have not disting- uished exhaustively between appropriate activity causing unfortunate accidental injury, and negligence, a sense of context, tempered by appeals to public policy 16 has been fundamental to the determination of the standard of care and hence liability for breach of it . Recognising the significance to society of participation in, or spectating upon, sporting activity, the courts have produced a framework which balances the respective interests of competitors and spectators and within which, nuance and novelty can be accommodated.

To regard the scenario presented by the facts in Smolden v. Whitworth as directly analogous to either the spectator/competitor or fellow competitors cases seems shortsighted. By under articulating the rationale behind his judgment Curtis J. has left the law with respect to referees obligations in perdue, a situation in which neither player nor referee can take comfort. The one abiding certainty in this circumstance is that it is tragic that a young man while pursuing healthy recreation can in one brief instant become paraplegic. The difficulty which confronted the referee in the case in point was that while he was clearly prepared to punish players he could identify as wrongdoers, the responsibility for collapsing the scrum could not be affixed to an individual culprit. The courts response in this context may have been to fall prey to the very same myopia of which they accused the second defendant. When the critical scrum collapsed, in the courts eyes the only head in plain view was that of the referee. The sense that this was financially convenient, as the referee was a member of the Staffordshire Rugby Referees Society and thus insured, is hard to dispel. It is unsurprising that the barely disguised convention underpinning tort in general that the party "best able" to bear the financial burden will so do, has extended into the sporting arena. How far the disabled sportsman should be granted such

15 Activity outside these rules can, of course, be the basis of a criminal action, as evinced by the case of Rv.John William BiUinghurst. [1978] Crim.L.l~ 553, where a rugby player in an %ff the ball incident" punched an opponent with such force that he inflicted a double jaw fracture.

16 No matter how far "in the modern game of rugby punching is the rule rather than the exception" (R v. WiUianu, ibid.), parties cannot be deemed to have consented to violent deliberate physical contact off the ball.

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enhanced status and subsequent financial recompense and be so distinguished from the individual born with such disabilities or unable to identify a responsible and sufficiently liquid foe (the "pure" accident victim) - - is a valid question for another day.

Clearly, finding first party liability in a circumstance where a referee actively inflicts harm on a player is uncontroversial, though it should be noted in passing that referees are subject to many more assaults at the hands of players than vice-versa. More generally the referee's, and in turn the courts, task is made easier where harm has occurred on the field of play by the fact that the first defendant, i.e. the party directly responsible for contravening the rules of the game and inflicting the injury, is readily identifiable. In the circumstance where a soccer player, who has continued to tackle fiercely and illegally from behind inflicts a serious injury on an opponent the referee can apply a punishment within the rules of the game - - send the offending party o f f - - and the courts can utilise his report to determine whether the individual challenge was so ill advised as to be negligent.

More significant is the fact that the court fixed liability upon the referee on this occasion for an omission: the failure to exercise a sufficient degree of control over another's activities, as a result of which a third party suffers injury. The referee was in a position of responsibility, qua in loco parentis, a guardian of the welfare of each and every participant on the field of play. In this context the law imposes a duty of care for the control of an ultrahazardous activity and draws a line in extreme circumstances where flagrant discharge of responsibility causes the precise harm, in the manner and of the magnitude forewarned. On the facts of the instant case Curtis J. found that exactly such circumstances existed. As he states in the judgment:

The known risk is of neck and or spinal injury of the utmost severity. The Laws lend support to the view that the RUFC, players and referees and administrators and coaches have recognised the problem and have taken energetic steps, in particular to prevent the collapsed scrum. Further the Laws repeatedly state for Colts Rugby where the players are by definition young men who have not yet acquired the neck and back musculature of adults that their express purpose is the interest of safety ... Where there is a known risk of this kind (emphasis in the original) I see nothing objection- able in the Law seeking to prevent and protect Rugby players from unnecessary and potentially highly dangerous if not lethal aspects of the game by the imposition of a duty of care. No responsible player and no

Fair Play or Spoiled Sport: the Legal Obligations of the Referee 87

responsible Referee has anything to fear. 17

In the context of an increasingly litigious society however, and specifically a money conscious culture within the sports "industry", the scope for ingenious litigators to produce variations on a theme of nonfeasance of officials producing foreseeable physical injury abounds. If society decides that liability should affix in particular situations, the courts must be explicit as to the ambit of responsibility and liability, guaranteeing referees some certainty underfoot. Whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about forseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair just and reasonable to impose a duty of care. Is Of course these three things overlap with each other and are really facets of the same thing. For example the relationship between the parties may be such that it is obvious that a lack of care will create a risk of harm and that as a matter of common sense and justice a duty should be imposedl In most cases of the direct infliction of physical loss or injury through carelessness it is self evident that a civilised system of law should hold that a duty of care has been broken. 19

I suggest that, particularly in full contact team sports, such a basis for affixing liability as negligence should be employed only in extremis. Rather it is in everyones i n t e r e s t s - players, officials and spectators a l i k e - that non litigious mechanisms are utilised to contain players indiscretions, accommodate the conflicting responsibilities of the referee and reduce the likelihood of serious injury arising. The qualities which underwrite competitive sport ~ skill, flair and determination to succeed, must be sustained within the bounds of the rules of the game. While the referee is charged with applying them, sports administrators devise them, coaches develop strategy to animate them and players must conduct themselves to exploit yet uphold them. Cooperation rather

than conflict should be the order of the day. The referee has an invidious task in the circumstances of Smolden.

17 Transcript of the judgment, p.11. 18 Caparo Industries P.L.C v. Dickman [1990] 2 A.C. 605 19 Saville J. in Dorset Yacht Co Ltdv. Home Office [1970] A.C. 1004, quoted

by Lord Steyn in Marc Rich & Co. v. Bishop Rock Ltd. [1996] 1 A.C. 211 at 235 (H.L.(E.)).

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Unlike the relationships which concerned the court in Condon v. Basi or Wooldridge v. Sumner, he is not party to a bargain where for the mutual benefit of both parties concerned the standard of care is adjusted downwards, or where he is expected to experience the thrills, expect the spills. He must fulfil a trio of functions, maintaining control over competitors, who particularly on the evidence of this case were hell bent on operating outside the rules of the game whenever an occasion presented itself; managing the game towards a result, and acting in a manner which protects the physical well being of the players. The complexity of his task and the distinction between the relationships is more clearly exemplified in the context of boxing.

A fighter seeks to win the contest by in effect pummelling his opponent into submission or unconsciousness. Absent the rabbit punch (opening the glove), the low blow or the use of elbows/head it is acceptable for him to utilise all the reserves of his energy to inflict injury on his opponent, and indeed to seek to capitalise on any "initial success" by targeting successive blows onto an opened wound or closing eye. The boxer who conducts himself within these bounds accepts that his opponent is intent on inflicting exactly the same damage upon him, and in the eyes of the court the standard of care demanded of each participant is reduced accordingly. With the promise of enjoying the fruits of victory there is a reciprocity of relationship between the protagonists, as there is with the ringside spectator who in turn accepts a lowering of the standard of c a r e - should a semi conscious pugilist come rolling over the r o p e s - in exchange for the buzz of proximity. The referee in contrast must manage the spectacle to the delight of the crowd, in pursuit of a result to satisfy the sports administrators and also balance the needs of the fighter who is unable to protect himself, against the very same individuals "right" to be given scope to regain his composure, defend himself and turn the tables. The ability of the sports administrators to dictate that a low blow requires the referee to administer a warning, and that a second requires a point to be deducted from the boxer's card, cannot define with certainty the point at which the referee must intercede to protect a boxer from further punishment. Freeze frame is a luxury that is denied him in the instant Failure to intercede appropriately is theoretically grounds for a negligence action. The difficulty in the rugby context is that whilst as recognised in the judgment, a series of penalties can be awarded against teams collectively the individual culprit is not easy to identify in the scrum. While the

Fair Play or Spoiled Sport: the Legal Obligations of the Referee 89

ultimate sanction of abandoning the game is provided for, it is not as easy in practice for the referee to pick up the ball and head for home.

The spirit of the game, and the maintenance of that spirit, is as much the responsibility of the players as the referee. Indeed I would suggest that in the circumstance whereby harm will be caused in a melee of players in a fast and physical game the players have cardinal respon- sibility. The inherent dangers of continuing to play in this manner were as well known to the players as the referee. Rather than redouble their efforts to be vigilant in the tackle, they bloodymindedly continued to impact with excessive force. The fact that financial compensation, however munificent, is a poor and uncertain substitute for permanent incapacitation is as evident to the competitors as the referee, and any mechanism which encourages foolhardiness or excuses blindside misdemeanours, inappropriately displaces their responsibility. Ignorance is an empty boast. Rugby players who want to be pugilists must adhere to the Marquis of Queensbury rules. They are playing the wrong sport.

As any junior who has stood on the verge of playing full contact team sport knows, progression to the senior ranks is often judged as much on your ability to "handle yourself" or look after team-mates as it is on your skill and acumen. Less able or agile grown men think nothing of crippling young pretenders. Referees cannot be expected to legislate for over zealous teenagers who "know the score" endeavouring to impress senior colleagues on the sideline with hardman antics. It is the responsibility of sporting authorities to legislate in favour of ability and against brutality within the culture of a game, rather than scapegoating the officials.

The most that can be demanded of a referee is consistency, application of the rules of the game in a manner sensitive to the way the players wish the game to be conducted. Honesty and professionalism in the manner in which players "play the game" is required across the spectrum. The prevalence of the "professional foul", extravagant dive, or beseeching of the referee to caution opponents, increasingly common on the soccer field, are indicative of similar undesirable behaviour in many other sports. Spectators are disappointed, pundits frustrated and competitors endangered by inconsistent application of ineffective rules. As the careful player is a bore, the excessively fastidious referee, anxious

90 The Liverpool Law Review"CoL XVIII(I) [1996]

about potential liability, threatens the ruination of sport as a spectacle.

Paul Rice Faculty of Law

University of Liverpool