Where Aggression Becomes Negligence: Czernuszka v King
On 23 February 2023, the High Court ruled that amateur rugby player Natasha King (the Defendant) was negligent for her “tackle” on opponent Dani Czernuszka “without any regard for the well-being or safety of the [latter] and intent only on exacting revenge” during a women’s amateur club match in October 2017.[1] Consequently, King was held liable for the life-changing injuries that Czernuszka sustained – a T11/12 fracture of the back, leaving her paraplegic. Damages are to be assessed at a later hearing and are likely to be around £10 million.
Aside from the impact on the parties, this case raised important legal issues regarding the standard of care owed between sports participants, expert evidence, and distinguishing between dangerous and legally negligent acts (one that the Czernuszka’s counsel stated is “paper thin”[2]). There is also a broader question: should the outcome of this case be concerning, alternatively comforting for sporting participants in England and Wales, especially at the amateur level?
The facts
Although the tackle at the heart of the case happened towards the end of a match on 8 October 2017, the King’s team (Bracknell Ladies) had “history” with Czernuszka’s team (The Sirens). Witnesses alleged that in an earlier match between the sides on 8 May 2017, King punched and injured opposition players (including breaking an opponent’s arm), plus engaging in hostile and intimidating conduct both verbally and physically.
This continued into the 8 October 2017 match, which was video recorded in full. King accepted she engaged in “trash talk with a lot of swearing”[3] and, prior to the tackle at the heart of the case, there were numerous incidents that the Judge highlighted when reviewing the match footage. Notably, an off-the-ball incident where King forcibly shoved a Sirens player to the ground the Judge deemed to be “a deliberate, gratuitous action by the Defendant… contrary to both the laws and Spirit of the game”.[4]
Shortly before the tackle that severely injured Czernuszka, King had winded herself after tackling Czernuszka, despite a considerable height and weight advantage. According to Czernuszka (and the Judge), this made King seek revenge. Several minutes later, when Czernuszka was in a vulnerable position, bending down to collect the ball from a ruck, King “put her whole bodyweight forward and down on the Claimant’s back”[5], injuring Czernuszka’s spinal cord, before King walked away displaying “no concern” whatsoever[6] as demonstrated by the video evidence.
Expert Evidence
Notably, expert evidence came from two former international referees, Ed Morrison (for Czernuszka) and Tony Spreadbury (for King). Both had officiated at the highest levels of the game, and their analysis of the video footage (including the key incidents prior to the injuring tackle) played a decisive role in the Judge’s findings.
The judgment is noteworthy as it contains a comprehensive analysis regarding the offside line at the tackle/ruck area and the protection of players in the scrumhalf role. Indeed, the expert evidence principally involved the following questions:
Was King offside?
Did Czernuszka have possession of the ball?
Was it legitimate for King to tackle Czernuszka at that moment?
How King made the tackle?
Spreadbury had originally stated in his report that King “was not off-side, nor did she commit any act of foul or dangerous play in accordance with the Laws of the Game.” Whilst Morrison also accepted that King was onside (as the ruck was over), but later said he had “never witnessed such a reckless incident” during “almost 60 years as a [rugby] player, coach, referee or administrator”.[7] During oral evidence, Spreadbury’s view of the incident aligned “closer to position of Mr Morrison”[8]; and acknowledged that Czernuszka was not in possession of the ball and “conceded the whole of the Claimant’s case [in relation to the mechanics of the tackle]… in a way which represented a complete volte face from the position he had taken in his report”.[9]
By moving from “his somewhat extreme position” (as the Judge called it), Spreadbury weakened two important facets of King’s Defence – that King had not done anything wrong within the laws of the game (as opposed to arguing it was an error of judgment).
Standard of Care
In summary, the central legal principles in play were:
What standard of care is owed to a fellow player in an amateur rugby match;
Did King fall below that standard of care when she injured Czernuszka?
The Parties cited distinct authorities setting out the applicable standard of care to be applied to the facts in question.
Czernuszka argued that the Court should apply the test in Condon v Basi [1985], which involved a tackle in an amateur football match, where Basi had broken the claimant’s leg. This created a test that a Defendant has a duty “to exercise such degree of care as was appropriate in all the circumstances“.
By contrast, King relied on Blake v Galloway [2004] from the Court of Appeal, which related to horseplay between 15-year-old boys throwing twigs and bark at each other. This asks the Court to apply a more rigorous test – that the tackle should only be actionable if it “amounts to recklessness or a very high degree of carelessness”.
Judgment
The Judge chose to follow Condon v Basi, in that King failed to exercise such degree of care appropriate in the circumstances. He deemed that “the Defendant did exactly what she set out to do, and whether or not the Claimant had possession of the ball was irrelevant so far as she was concerned: at that moment she was not attempting to play within the Laws of the game, but to exact retribution on the Claimant” [10]. In his reasoning, the Judge noted the level of the game, that King could have changed her action towards a player in a vulnerable position, and that King in effect “closed her eyes to the [clear and obvious] risk [of injury]”.[11]
Although the Judge agreed with Morrison’s analysis that the tackle was a “reckless and dangerous act and fell below an acceptable standard of fair play“[12], he considered that this was not a necessity for proving on-field liability. Indeed, the Judge did “not consider the Court of Appeal in Blake v Galloway did, or intended to, lay down any rule or principle that, in the sporting context, the conduct complained of must be reckless or demonstrate a very high degree of carelessness”[13], instead preferring to follow another Rugby case in Smoldon v Whitworth & Nolan (1997) (where a player suffered a broken neck from a collapsed scrum) where the Court of Appeal rejected the need to prove recklessness.
What does it mean?
The decision attracted significant media coverage and caught the attention of not just rugby players, but anyone who takes part in any sport with an inherent risk of injury. This may have been aggravated by Czernuszka seeking around £10m in damages. In reality, the legal position in Condon was affirmed regarding the standard of care a sporting participant owes to another. Whilst such decisions are rare, the Judge stressed the “very unusual and exceptional” facts of this case.[14]
There were several pertinent issues from the judgement:
When contemplating the applicable legal authorities (paras. 35-45), unusually the Judge made no reference to recent decisions involving negligence on the field of play, such as Tylicki v Gibbons [2021] and Fulham Football Club v Jones [2022]. Both cases asserted that the courts will not impose liability lightly.
In Tylicki, the judge cited the principles from Caldwell v Maguire & Fitzgerald [2001], that it may be tough to prove a breach of duty, without proof of a reckless disregard for another participant’s safety.
In Fulham FC v Jones, a mere breach of sporting rules does not equal negligence, but it may provide background context (para. 63).[15]
The Judge commended the “skilful and precise cross-examination [of Mr Spreadbury by Czernuszka’s counsel] elicited [a number of] concessions”[16], which were accepted and relied upon by the Judge. He was also “impressed with the overall evidence of Morrison and his views of the match in general”.[17] In circumstances where significant weight will be put upon expert evidence to decide liability, this demonstrates that evidence which is good on paper may not be as strong after cross-examination.
Here, the photographs (at para.16) were more effective than any written or spoken evidence could be in showing the “wholly unconventional”[18] and "obviously dangerous”[19] execution of the tackle. Without video footage, the Judge would have needed to rely solely on fact witnesses and may have been differently decided.
The premeditation of the tackle is heavily underscored. Again, video footage proved there had been a series of events which led to the point that “the red mist had metaphorically descended over the Defendant’s eyes”[20], rather than the tackle looked at in isolation.
Whilst the rules of rugby are complex and continually changing, the analysis of its laws is sometimes hard to follow and sometimes flawed. This could be due to experts applying rules from the time of the incident, which have since evolved further. For instance, para. 24 states “for a player to be in possession, he or she had to be carrying the ball” – however, possession is no longer defined this way by the present World Rugby Laws of the Game (which defines this as “an individual or team in control of the ball or who are attempting to bring it under control”).
In summary, the threshold for negligence is and remains high. Still, the case is notice for those who participate, irrespective of amateur or professional status, do not have carte blanche, nor de facto legal immunity, to take excessive physical risks when they enter the field of play. Moreover, participants should ensure that they have appropriate insurance in place to protect themselves from potential claims (or injuries incurred). While the law rarely enters the field of play when it comes to sport, it is always sitting in the stands watching closely.
[1] Para. 58(ix) of the Judgment
[2] Para. 46 ibid
[3] Para. 9 ibid
[4] Para. 11 ibid
[5] Para. 16 ibid
[6] Para. 18 ibid
[7] Para. 27 ibid
[8] Para. 32 ibid
[9] Para. 33 ibid
[10] Para. 58(xi) ibid
[11] Para. 58(x) ibid
[12] Para. 59 ibid
[13] Para. 60 ibid
[14] Para. 62 ibid
[15] Reference is made in paras. 27 and 53 to the unreported judgment of Hallet J in Pitcher v Huddersfield Town FC (HQ 0005953 – QBD transcript, 17 July 2021) in which she described cases in which the threshold for liability is reached as “football crimes”.
[16] Paras. 33 and 59 of the Judgment
[17] Para. 57 ibid
[18] Para. 49 ibid
[19] Para. 58(ix) ibid
[20] Para. 58(vii) ibid