Czernuszka v King [2023] EWHC 380 (KB): Do sporting claims now have a fighting chance?

In the case of Czernuszka v King [2023] EWHC 380 (KB) the Court explored the important point of negligence in competitive games.

The claim involved players from two opposing rugby teams, the Sirens (the Claimant’s team) and Bracknell Ladies team (the Defendant’s team). Near the end of the game a scrum took place. The ball was taken out of play – something acknowledged by the Bracknell coach. The Claimant had come around to the back of the ruck and, acting as scrum half, had bent down to pick up the ball from between the legs of another player. She was in “a highly vulnerable position,” with her head and neck exposed, not braced for a tackle. The Defendant did not compete for the ball but instead tackled the Claimant by putting her whole bodyweight on the Claimant’s back, grabbing the Claimant’s thighs in the process. The Claimant was in a parcelled position and sustained a T11/ 12 fracture dislocation with a T10 Asia B spinal cord injury. The injury left the Claimant paralysed from the waist down.

Key factors in this case were:

• The size of the Defendant (between 16 and 17 stone) vastly outweighed the Claimant’s own size (9 stone);
• The game was a developmental game – aimed for players to learn not win;
• The Defendant and her team engaged in trash talk and aggressive behaviour during this game and the one preceding (the Defendant had previously punched a player, caused a player to sustain a head injury, and broken the arm of another);
• The Defendant became increasing frustrated when her team was losing, and when she had injured herself after tackling the Claimant earlier in the game;
• The Defendant had said she was going to “break” the Claimant;
• The tackle inflicted upon the Claimant was wholly unconventional, dangerous, and contravened the Laws of Rugby.

The Judge agreed with the Claimant’s expert evidence, and found that the tackle was “reckless and dangerous and fell below an acceptable standard of fair play”. Following the decision in Condon v Basi, when considering negligence the test is whether the Defendant failed to exercise such degree of care as was appropriate in all the circumstances (our emphasis added).

This claim underlines the need for a Claimant in a sporting injury case to show that the events giving rise to the claim go well beyond what would happen in the normal course of play. Where injuries are caused deliberately (for example one player punching another) then insurance cover may not be available, as most public liability policies confine cover to accidental injuries. However it is worth noting that even in the fairly extreme circumstances of Czernuszka the Defendant was not found to have deliberately caused the injury; the test applied was whether she exercised the correct degree of care which was required in those circumstances.

If you would like to discuss this topic in more detail, please contact Daisy McConnell, Solicitor.