How the perceived risk of litigation affects the rules of rugbyTim O'Connor
As anyone looking at the wreckage of the western world’s economy has by now realised, humans aren’t very good at assessing risks. What we perceive as being a threat, and what’s really dangerous, frequently don’t coincide at all.
It is this clash between perceived risk and actual risk that causes problems in terms of liability and in terms of managing risks in sport. This article will look at one particular case, the scrum in rugby union1, will look at how a perceived risk of litigation, once settled, can be near-intractable, and will try to suggest remedies.
That rugby can sometimes be dangerous, and will very often hurt, is something accepted by anyone playing the game, and by the Courts. Scrummaging, for example, has innate risks implicit when one 900kg group of 8 tries to push the other backwards. Surprisingly, the risks have shifted so that roughly half of all catastrophic injuries now happen in the tackle, instead of the scrum2.
That scrum injuries are more likely to go terribly wrong instead of just wrong means the scrum that has been most targeted by the lawmakers in the game. Well and good; anything that makes for safer scrums while not affecting scrummaging is to be welcomed 3. To that end, there are rules for underage players who are still learning the skills of scrummaging, aimed at protecting them while they learn and before they go on to playing the game properly. These Under-19 Laws restrict the amount a scrum can turn, or the distance it can be pushed, making pushover tries impossible. In effect, a full scrummaging contest is sacrificed for safety for the inexperience4.
Yet the perception of risk of litigation has led to the introduction of the underage scrummaging rules for adult players in Ireland. Given just how much this affects the game for forwards – 8 of the 15 players in a team - it has, effectively, drastically altered the playing of the game for a majority of adult rugby players in Ireland. When full scrummaging dominance is no longer a game winner, there’s no reason to seek to win the game through the scrum, or even pick a player who can give you that dominance. Scrummagers go the way of the battleship; formerly unquestioned, now obsolete.
This can be traced back to two cases, Smoldon v. Whitworth5 and Vowles v. Evans & WRU6. The first involved an untrained, underage player stepping into play in the front row of an adult scrum in a game where there were nearly 50 collapsed scrums, in the particularly dangerous position of hooker. He slipped, the scrum collapsed, and he suffered a serious fracture of his neck and spinal cord. He sued the referee for negligence in enforcing the laws of rugby relating to the scrum, and succeeded.
In Vowles v. Evans & Welsh Rugby Union, the Plaintiff was an experienced front row player, in a local derby where one team had run out of experienced front row players due to injury. A player in a different forward position, who had some very limited experience, volunteered to “have a go” and went into the front row as a replacement. In the last scrum of the game, the Plaintiff, scrummaging alongside that player, broke his neck. He sued the referee and the Welsh Rugby Union for the referee’s failure to apply the scrummaging laws made for player safety which required front row players to be trained and experienced, and succeeded.
In each, clear negligence in the enforcement of the law relating to scrummaging led to a player suffering a catastrophic neck injury. In each, the judgements stressed, clearly, that rugby has inherent dangers, that those dangers and the near-certainty of some sort of injury are accepted as being well worth it in order to play the game; but that referees have a duty of care to players to enforce laws of the game made to protect players. The threshold to show that this duty of care had been breached was a high one, and not easily to be crossed; injuries in the normal course of events, where a referee was refereeing normally, would not suffice. Smoldon and Vowles both carefully emphasise that while a referee has a duty of care to enforce laws made for player safety, the standard of care is such that it will be a very rare set of circumstances indeed where liability will accrue and that a referee will not be liable for normal errors of judgement in the course of a fast-moving game.
Nor was there a consequent duty on the governing body to make the game perfectly safe; the inherent dangers of a collision sport meant that it cannot be made perfectly safe, nor was there an active duty on the governing body to make it such a game.
Yet, despite this, despite the manner in which Vowles goes out of its way at the end of the judgement to stress that such fears are largely baseless in normal play the ten years since have seen the introduction of limited, reduced scrummaging, driven at least in part by fear of litigation.
Changes to Irish rugby
To focus more narrowly on the Irish experience: under the Civil Law (Miscellaneous Provisions) Act, 2011, a simple, but profound change was made to liability of volunteers in sports in Ireland. Under Part 3 of the Act, any person carrying out any work or activity for the purpose of, inter alia, sport or recreation for a non-profit organisation (such as all sporting governing bodies) and without expectation of payment other than expenses, will not be personally liable for negligence in the course of that voluntary sporting work. That immunity will be lost if the negligent act is performed in bad faith or with gross negligence; similarly, if contrary to the instructions of the governing body or outside the scope of that body, it will also be lost. However, in the case of the ordinary referee blowing the whistle on a Sunday morning to allow what was so aptly and lovingly described as Coarse Rugby7 continue, that referee will normally be immune.
And yet, despite this, there has been no reversal of the changes to adult scrummaging, no return to the previous regime even when the (already tight) boundaries of Vowles v. Evans have been even further tightened.
It is this which gives one pause, and which worries. Here, one has an excellent, sport-friendly, legislative response, balancing the needs of sport and the aim to ensure that the grossly negligent do not get off scot-free. It has been aimed at undoing a perception that has led to a chill on a sport, and should have done so; yet there has been no thaw.
If it is the case, and it must be stressed this is a very small sample size, even in a notably ligitious country, then it suggests that the chill factor on a sport of any successful litigation around an area becomes part of the “everyone knows” background in the consciousness of that sport, not lightly to be shifted. This might be an example of a type of availability heuristic, the process whereby one assumes the risk of something which one can readily call to mind or which one hears about despite it being rare is significantly higher than is otherwise the case. For example, one hears about almost every fatal shark attack on a human, so that is perceived as being a real risk; yet one is actually more at risk of death from debris falling from aircraft8. So, one high-profile case in exceptional circumstances where a referee is successfully sued can lead to a fear that there is a real risk that all referees will be sued.
Even where the decisions in question, and subsequent decisions, stress that the Courts “must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from the Courts than it should be” 9, this misperception of the risk of litigation will lead to radical changes in the everyday playing experience. Paradoxically, it may even increase the actual risk of litigation; an adult player who, because of this law change, has no experience of full scrummaging is, by definition, inexperienced, just as was the Plaintiff in Smoldon. Should that player be called up a level, due to injury or promotion, to where there is full scrummaging, that player is now playing front row when inexperienced – the situation giving rise to liability in Smoldon.
The implication of this would be that there is a huge onus on a governing body to pre-empt litigation where possible, and where concerns were raised. In contact sports like rugby, the issue of concussion is one that could lead to a devastating chill effect from litigation. Given the recent coverage of this issue in rugby (much of which, it must be said, seems surprisingly unaware of the Zurich 2 Consensus, the international best-practice guide to treating concussion in sport10), this will almost certainly be in the back of minds in the coming months.
This need to pre-empt litigation would, ironically, have the effect in practice of reversing Agar v. Hyde11 In this Australian case, young players who had suffered catastrophic spinal injuries in collapsed scrums sued the then-IRFB for failure to introduce safer scrummaging laws.The case failed, partly by reason of the duty of case on the then-amateur and unincorporated governing body, and partly because of the acceptance of the risks inherent in playing a game according to the rules of that game being such that the duty of care does not extend to a positive duty to make it perfectly safe, even while the adoption of similar protections for amateur referees as afforded by the Irish model would make it more difficult to succeed against a governing body. However, unless and until a high-profile case not just fails, but publicly fails, it is hard to see how else the “everyone knows” perceptions can, in practice, be shifted.
This is all the more so when one considers that this is not a nuanced age. Whatever one’s intentions, social media, such as the140 character of Twitter do not permit of many caveats, and media facing this competition for the attention of the public are often forced to follow suit in presenting results in starker and starker terms.
An example would be the description of a recent study reporting one incidence of early-onset dementia thought to be linked to concussion as a “game changer”12 and a sample size of one leading to a tweet that “no player should take the pitch before reading this”13. Whatever the nuances of the paper, or the responses pointing out other studies,14 it is this first headline that grabs attention and sets the agenda, as the discussion about concussion in rugby has shown of late. So, one headline can set a ball rolling which a governing body will be hard put to catch up with.
The tentative suggestion is therefore: anticipate, enforce, and announce. Anticipate what could be flash-points, and if necessary amend the rules of the sport if it has no effect on the game but removes the risk; enforce those rules; and announce that it is being done, to settle misplaced fears about risk. It places a premium on governing bodies to keep their rules under review, and to gather good injury and risk analysis data; but it is suggested that this is good practice in any event, and poses no great burden to a well-run governing body. Regular announcements of how the rules are being enforced will help the sport tell the story of what the risks are, instead of the misplaced fears of those risks.
It may be work; but better that than seeing one’s sport under the tyranny of “everyone knows”.
1. For those who are unfamiliar with rugby, scrummaging consists of the eight members of forward pack of each team – usually the biggest men on the pitch – bound tightly together in three rows of 3, 4 and 1. The front row of three – from left to right, loosehead prop, hooker, and prop – engage, or mesh together, with their opposite numbers, head under chest, and all try to push the other team off the ball. If it goes right, it is a supreme contest of united skill and strength against strength. If it goes very wrong, the front row can be left their neck pinned on the ground with over 900kg from each side driving from each side.
2. https://www.bjjprocs.boneandjoint.org.uk/content/94-B/SUPP_XXXIX/250.short; https://www.rfu.com/managingrugby/firstaid/injuries/~/media/files/2009/firstaid/citg%20report.ashx . https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2907385/ Even allowing for the caveats of the lower number of scrums suggesting a potentially higher risk, the scrum does seem to be the most dangerous facet of play - https://www.ncbi.nlm.nih.gov/pubmed/17513332/ . Anecdotally, well-known players such as Tom Croft of England, Joe Ansbro of Scotland, Pat McCabe of Australia and have all suffered broken necks in the last year in legal tackles; Ansbro had to retire as a result.
3. See, for example, the recent moves to reduce the initial impact as the two scrums come together – the “hit” – and thereby reduce collapsed scrums. https://www.irb.com/newsmedia/mediazone/pressrelease/newsid=2068584.html#irb+referees+ready+scrum+trial+debut
4. For an example of a graduated, stepping-stone approach, see the South African version at https://www.sharksmart.co.za/documents/SARUScrumLawModificationsForSAAmateurRugby-2013.pdf
5.  PIQR 133
6.  EWCA Civ 318
7. Mike Green’s immortal The Art of Coarse Rugby, beloved of enthusiastic but not very good rugby players the world over, defined Coarse Rugby as “a game played with always fewer than fifteen players a side, at least half of whom are totally unfit”. In other words, rugby as played by most normal rugby players.
8. See Tversky, A; Kahneman (1973). "Availability: A heuristic for judging frequency and probability". Cognitive Psychology 5 (1): 207–233; Gigerenzer et al Heuristics and the Law
9. Sutton v. Syston Rugby Football Club  EWCA Civ 1182 at 19 per Longmore LJ.
11.  HCA 41
14. https://www.fsem.co.uk/dementia-and-contact-sports.aspx ; https://www.medicalnewstoday.com/releases/264589.php (note the concluding remarks: “In their paper, Randolph and colleagues wrote that media coverage of this issue "continues to far outweigh any meaningful results from sound experimental science, and a definitive epidemiological study still has yet to be done.").
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About the Author
Tim O'Connor BL is a practising barrister at the Irish Bar with a special interest in rugby and the law. He has published, spoken and blogged on concussion, liability, player eligibility issues and disciplinary challenges in rugby, as well as appearing for clients in rugby-related cases.