An Article from The Law Society Gazette re Vowles case (posted 29th May 2003)

BEING A REFEREE IS FRAUGHT WITH DANGERS AS THE RISK OF A PLAYER SUSTAINING SERIOUS INJURY OR SUING ANOTHER PLAYER BRINGS CLOSER THE THREAT OF LITIGATION. CHRIS BAKER LOOKS AT HOW THE LAW HAS SWEPT ACROSS THE SPORTING LANDSCAPE 

When Richard Vowles ran onto the rugby pitch on 17 January 1998 to play as hooker for Llanharan Rugby Football Club in a derby, little did he know that he was going to sustain life-threatening injuries in a scrum. 
And little did referee David Evans and the Welsh Rugby Union (WRU) know that they were going to be held responsible for those injuries, which left Mr Vowles wheelchair-bound. 
In December last year, the High Court found that Mr Evans owed Mr Vowles a duty of care, which he had breached, and was thus responsible for his injuries. In March, the Court of Appeal upheld the ruling, but tried to limit its effect by saying that liability was established because the injury resulted from a failure to implement a law designed to minimise the risk of this kind of accident. The Master of the Rolls, Lord Phillips of Worth Matravers, said that such a failure was likely to be 'very rare' and should not discourage amateur referees from taking charge of games. 
The WRU is looking for a further appeal to the House of Lords as it still feels the amateur game could be put at risk by the judgment. WRU chairman Glanmor Griffiths is disappointed with the ruling, saying it could affect other sports. 
Speaking after the judgment, Mr Griffiths said: 'This has been a landmark case for sport in the UK, which may force the governing bodies of many sports to re-examine their rules and regulations and take a long, hard look at training practices for players, coaches and officials.' 
Insurance premiums are certain to go up and it will become extremely difficult to recruit referees, he added. 
As prominent sports lawyer Mel Goldberg, a partner at London-based Max Bitel Greene, puts it: 'When someone is asked to be a referee now, they will have to ask themselves, "Do I say yes and get sued if I make a mistake?" Technically, if you do not understand the rules, you should not become a referee.' 
The issue in the Vowles case was whether scrummages should have been contested or passive - that is whether the members of the scrum should push or not. A shortage of experienced front-row players will make a scrum more likely to collapse in upon itself, raising the risk of injury. By vicarious liability, a governing body is responsible for the actions of accredited or approved referees. And a referee's job is to ensure that the rules of the game are adhered to, and to penalise those who break them. In this case, the referee allowed a contested scrum to go ahead when the rules said he should not have done. 
The Irish RFU has already written to its clubs, warning that all scrummages should be passive where there is a shortage of front-row players. 
But most experts maintain that the case will not result in a torrent of similar cases. 
Mr Vowles' solicitor, Phillip Griffith of Cardiff firm J Peter Davies & Partners, says: 'While it is clearly an important judgment, I do not anticipate an avalanche of further claims. As the Court of Appeal indicated, serious injury is happily rare in rugby matches and its occurrence in circumstances which could give rise to a negligence claim rarer still.'

Mr Goldberg agrees. 'I would doubt this kind of thing happens often, but it will make people think about whether they want to be a referee or not. But with schools, not only the master in charge of the match could get sued, but also the school as well.' 
And the world of association football is not alarmed. A Football Association spokesman says: 'It's not really an issue facing football.' Mr Goldberg points out that the risks of such injury in football are much less. 
But Alan Burdon-Cooper, the head of the sport department at City firm Collyer-Bristow, predicts that sports injuries cases will increase. He points to cases, reported with incredulity in the press, where schools have banned conkers, skipping and running. 
'The recent reported cases on sport injury all indicate that governing bodies of sport, organisers of sporting events, referees, team managers and those who take part are all in the firing line,' he says. Mr Burdon-Cooper adds that those people must have robust controls in place to minimise risk. 
Karena Vleck, head of sport at London firm Farrer & Co, says: 'Governing bodies are increasingly concerned about liability because they have insurance, so people think they can get something and we are living in a much more litigious society than we were.' 
But Mark Harvey, secretary of the Association of Personal Injury Lawyers and a partner with Cardiff firm Hugh James, says: 'It's the same for shop owners and home owners. They have a duty to make sure everybody who comes into their area is safe and there is no reason why sport should be any different. The playing authority should always identify a set of rules that they think will reduce the risk of injury.' 
He argues that any claims that referees will be driven away are a 'nonsense', as the governing bodies have insurance. Referees will just have to make sure they fully understand the rules. 
This latest ruling echoes that of the Court of Appeal in Watson v British Boxing Board of Control Ltd and Another [2001] QB 1134. There the court upheld that boxing's governing body owed boxer Michael Watson a duty of care to provide appropriate resuscitation equipment and someone who was qualified to use it at the ringside.  
'The simplistic view that participants in sport impliedly consent to the risks which are inherent in their sport or pastime has been kicked into touch,' Mr Burdon-Cooper says. 
But cases involving players suing each other will rest on their own individual merits, he adds. When, in 1994, footballer Paul Elliot sued Dean Saunders (then playing for Chelsea and Liverpool respectively) for a tackle that ended his career, the claim was unsuccessful. The tackle was deemed to be within the rules of the game. However, in amateur football, a player was held liable for a sliding tackle which broke his opponent's leg. 
In a slightly more bizarre Court of Appeal case, Pearson v Lightning, a golfer was found liable after his ball bounced off a tree and hit the head of someone on the adjacent fairway (see [1998] Gazette, 20 May, 33). The court said he knew that he was playing a difficult shot and that someone was on that fairway. 
Criminal cases involving players are rarer. Manchester United's Eric Cantona was found guilty of common assault and sentenced to two weeks in prison - replaced on appeal with 120 hours' community service - after leaping into the crowd at Selhurst Park in 1995 to aim a kung-fu kick at a Crystal Palace fan who racially abused him. 
There have also been instances of police investigating allegations of players spitting at fans, or of fights in the tunnel, but they never seem to go beyond that stage. 
Mr Harvey recalls a case where a spectator unsuccessfully claimed a player had deliberately kicked the ball into the crowd at him, breaking his arm. Such matters are accepted as voluntary risk. 'But what you don't risk [when you go to a match] is someone running into the crowd and kicking you,' he adds. 
He says that insurance and contractual issues are going to become big issues for governing bodies. 'What happens if Manchester United lends David Beckham to the FA and he breaks his leg playing for England?' Mr Harvey asks. 
Mr Burdon-Cooper says that for governing bodies and organisations with a poor insurance claims history, managing the risk, careful review of the rules and regulations, and training will all be essential. 
He says: 'Although it would not have affected the result of the Vowles case, education of the Llanharan team of the risks of putting an inexperienced player in the front row might have prevented the problem from arising in the first place.'