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REFEREE! YOU CANNOT BE SERIOUS!
By Tim Kevan, 1 Temple Gardens and Duncan McNair, Equity House Chambers
The potential liability of referees has come to the fore in past few years with ground-breaking decisions in Vowles v Evans & Welsh Rugby Union [2003] 1 WLR 1607 and Smoldon v Whitworth and Nolan [1997] PIQR P133. However, it has been emphasised that the threshold for liability is a high one and this is illustrated by the more recent case of Allport v Wilbraham (unreported, Court of Appeal, 15/12/04). This article provides a brief guide to these decisions.
Smoldon v Whitworth and Nolan
In Smoldon, a referee of a colts rugby union match was found liable for very serious injuries suffered by the Claimant as a consequence of a collapsed scrum. The referee had allowed numerous scrums to collapse in what was, by all accounts, an ill-tempered match. The case itself was an extreme one and the laws of the game as applied to colts had been specifically revised by the International Rugby Football Board to reduce the risk of such injuries, in particular by requiring that scrums should be required to form a defined sequence of crouch-touch-pause-engage. Prior to the accident, the defendant had failed to enforce those rules and allowed the scrums to ‘come in hard’ which had lead to more than twenty collapsed scrums. This had even been in the face of a warning from one of his touch judges that someone would get hurt if he did not step in and also in the face of shouts from spectators and complaints from certain players.
The Court of Appeal emphasised that the threshold of liability is a high one and further that all the circumstances had to be taken into consideration. The referee could not be properly held liable for errors of judgment, oversight or lapses of which any referee might be guilty in the context of a fast-moving and vigorous context. However, they distinguished the duty owed by referees to players (simple test of negligence) from that owed by players to spectators (test of reckless disregard). They concluded that a referee owes a higher duty to the players under his control than a player does to a spectator.
Vowles v Evans & Welsh Rugby Union
This case was followed by that of Vowles v Evans & Welsh Rugby Union. In that case the Court of Appeal upheld a judgment against a referee of an adult amateur rugby match holding in particular that such a referee owed a duty of care to the players to take reasonable care for their safety when carrying out his refereeing duties and further that his breach of that duty caused the claimant's injury. In that case the referee allow a flanker to replace a prop without first checking about his previous experience. The true position was that that person was not suitably trained or experienced so as to be fit to play safely in the front row. It was held that this was negligent and ultimately caused the Claimant, who was playing at hooker, injury.
This was upheld by the Court of Appeal which emphasised that rugby was an inherently dangerous sport and that some of the rules were specifically designed to minimise the inherent dangers. Players were dependent for their safety on the due enforcement of the rules and the role of the referee was to enforce the rules. However, it was again emphasised that the threshold of liability was a high one. They held that the referee should not have offered Llanharan the option to continue with non-contested scrums or to try J as prop and that he abdicated his responsibility of deciding whether it was mandatory to insist on non-contested scrums.
Allport v Wilbraham, Court of Appeal, 15/12/04
Whilst these last two cases were successful for the Claimants, a further case has since gone to the Court of Appeal in which a claim against a referee failed, that of Allport v Wilbraham. In that case the Claimant had been paralysed from the neck downwards following a scrum in a rugby match which had been refereed by the Defendant. The Claimant had been playing as hooker in the front row of the scrum. He alleged that the Defendant had failed adequately to control the scrum in accordance with law 20 of the Laws of Rugby by failing to call "engage" before the two front rows engaged in the scrum and that he had failed to notice that one of the props was not in the correct position required by law 20. The judge, preferring the evidence of the Defendant to that of the Claimant's witnesses, gave judgment for the Defendant. On appeal the Claimant argued that there were defects in the judgment such that it would be right to order a retrial because the judge was not even-handed in his approach, misunderstood some of the important evidence and failed in a material respect to explain his conclusions. This was dismissed with the Court holding that the Judge had been entitled to prefer the oral evidence of the Defendant to that of witnesses for the Claimant and had given adequate reasons for that preference.
The future for referees
Whilst these cases do not necessarily open the floodgates for litigation against referees, they will no doubt lead to other actions over the course of the next few years. Nor is it likely to be limited to rugby. All number of sports could come under scrutiny. What if, for example, a boxing referee failed to stop a fight in time, resulting in injury to a boxer? Or perhaps a bad call by an umpire leading to a player losing a tennis championship?
One case illustrates a boundary of potential liability. It involved Mike Read who refereed the Chelsea – Leicester FA Cup Fifth round replay at Stamford Bridge in February 1997. He awarded a penalty to the home side which led to the winning goal and which gave rise to much controversy. Proceedings were issued against Mr Reed and the Football Association by some Leicester supporters who claimed compensation for the severe distress and anxiety which they allegedly suffered as a consequence of his decision, compelling them to take time off work to recover from the physical trauma. The claim was struck out as an abuse of the process of the Court. No doubt issues of duty of care, breach, foreseeability and causation formed part of the reasoning for this decision.
However, it does not necessarily mean that clubs themselves may not consider some form of claim in the future for the actions and decisions of match officials. Whichever way the law develops in the future, it is clear that it would be wise for referees to consider their potential liabilities and look at insuring against them.
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