Czernuska v King: Is Recklessness Required in Sporting Injury Cases?

In Czernuszka v King [2023] EWHC 380 (KB), the Claimant, an amateur rugby player was tragically rendered paraplegic and wheelchair-dependent for the rest of her life. She claimed damages in negligence against the Defendant, who carried out the tackle which caused this injury. 

Participation in sport raises particular issues in the context of legal duties because often due to their very nature sports create additional risks of injury, through the speed and physicality of the contact between participants, the use of equipment such as sticks, bats or balls or a myriad of other hazards. The varying nature of sports and their risks create differing problems. Allied to this are the varying levels at which sports are played, creating inherently different risks as well as differentials in the funding and protection available between professional and amateur sport. Finally, in this area, courts do not want to discourage participation in socially desirable activities by imposing too onerous a duty of care for sporting participants.

The introduction to the judgment of Martin Spencer J in this claim highlighted some of these considerations and also the central issue of what was the standard of care which was applicable in claims brought by sporting participants:

“In general, injuries, even serious injuries, are an accepted risk of the sport and do not sound in damages. However, sport is not exempt from, or immune to, the law of negligence. As will be seen (see paragraphs 35-45 below), the courts have deemed actionable injuries sustained where the conduct of the opposing player fell below the standard of care appropriate and to be expected in all the circumstances. Sometimes, by reason of the particular circumstances, the bar for that standard will be set high requiring recklessness or a very high degree of carelessness: see, for example, Blake v Galloway discussed at paragraphs 44 and 45 below. The main issues in this case are whether, for the Defendant to be found liable, it is necessary for the court to find that she was reckless or exhibited a very high degree of carelessness given the particular circumstances of this case and whether, depending on the court’s findings in relation to the first issue, the tackle executed by the Defendant which caused the Claimant’s injury met this test so as to render the Defendant liable to the Claimant in damages.“

There have been a number of cases which have addressed the nature of the duty of care in sport. In Condon v Basi [1985] 1 WLR 866, a case concerning a football tackle breaking the leg of a fellow player, Sir John Donaldson MR observed an absence of authority as to the standard of care in competitive sports, particularly where the rules permitted a degree of physical contact. He went on to consider two approaches taken in the Australian case of Rootes v Shelton [1968] ALR 33:

“I have cited from those two judgments because they show two different approaches which, as I see it, produce precisely the same result. One is to take a more generalised duty of care and to modify it on the basis that the participants in the sport or pastime impliedly consent to taking risks which otherwise would be a breach of the duty of care. That seems to be the approach of Barwick CJ. The other is exemplified by the judgment of Kitto J, where he is saying, in effect, that there is a general standard of care, namely the Lord Atkin approach in Donoghue v Stevenson [1932] AC 562 that you are under a duty to take all reasonable care taking account of the circumstances in which you are placed, which, in a game of football, are quite different from those which affect you when you are going for a walk in the countryside. 

“For my part I would prefer the approach of Kitto J, but I do not think it makes the slightest difference in the end if it is found by the tribunal of fact that the defendant failed to exercise that degree of care which was appropriate in all the circumstances, or that he acted in a way to which the plaintiff cannot be expected to have consented. In either event, there is liability.” [Emphasis added.]

The suggestion was that the duty to be applied was the standard duty of care but to take into account the particular circumstances of the case. The Defendant’s argument in King was that the Court could find “the injuring tackle to be actionable only if the court finds that it was reckless or satisfied a very high degree of carelessness.“

The Defendant relied upon Blake v Galloway [2004] 1 WLR 2844, which concerned horseplay between 15-year-old boys who were throwing twigs and pieces of bark chipping at each other. The Claimant picked up a piece of bark chipping and threw it at the Defendant, who then picked it up and threw it back. Unfortunately, it struck the Claimant in the right eye, causing a significant injury. The judge at first instance found the Defendant liable, but Court of Appeal allowed the Defendant’s appeal. In his judgment, Dyson LJ had noted various characteristics of the game being played before concluding that there would be a breach of duty “only where A’s conduct amounts to recklessness or a very high degree of carelessness.” The court found that the Defendant’s actions did not reach this high standard and that what had happened was “an unfortunate accident, and no more.”

The Defendant’s argument and reliance on Blake as authority for a recklessness test was ultimately unsuccessful. Martin Spencer J undertook a review of previous authorities. He considered the cases of Caldwell v Maguire [2001] EWCA Civ 1054 and Smoldon v Whitworth [1997] ELR 249. These cases supported the Condon approach of a general standard adapted for the facts of the case. In Caldwell, an injury claim brought by a jockey against two fellow jockeys, the suggestion that a Claimant had to prove recklessness was specifically rejected as it was in Smolden.

When faced with the apparent conflict between the approach in Blake and Condon approach, Martin Spencer J disagreed that the intention of Dyson LJ had been to suggest a standard of recklessness. He had simply found that the particular facts of the informal game being played by the children mandated a high standard in that instance. 

What Characteristics Are Relevant?

In any case therefore, the context and characteristics of the game being played will be of central importance in assessing the nature of the conduct needed to establish a breach of duty. In Blake the game was described in the following terms so as to justify the need for recklessness or a very high degree of carelessness: 

“informal play which was being conducted in accordance with certain tacitly agreed understandings or conventions … [namely] that the objects that were being thrown were restricted to twigs, pieces of bark or other similar relatively harmless material that happened to be lying around on the ground; they were being thrown in the general direction of the participants in a somewhat random fashion and not being aimed at any particular parts of their bodies; and they were being thrown in a good-natured way, without any intention of causing harm. The nature of the object and the force with which they were being thrown were such that the risk of injury (almost certainly limited to injury to the face) was very small. There was no expectation that skill or judgment would be exercised, any more than there would be by participants in a snowballing fight.“

The standard is an objective one but can reflect the skill to be required of participants who operate within theirsport at different levels: “there will … be a higher degree of care required of a player in a First Division football match than of a player in a local league football match” (Condon). This was also significant in the King case itself where the inexperience of the players in what was a friendly development match was relevant.  

The courts have also been clear to establish that “there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required.” Further, it will not of itself be enough to establish negligence that the conduct was a breach of the rules of the sport in question.

In considering whether a breach of duty has been established in the heat of sporting endeavour, practitioners will need to undertake a careful analysis of the nature, level, type and context of the event. Whilst in certain circumstances a standard of recklessness or very high carelessness may be appropriate, it is clear that this will not always or indeed normally be the case.

The Decision in King

Ultimately, in this case, the Claimant succeeded but it is worthy of note that prior to tackle which injured the Claimant, the Defendant had punched another player and broken the arm of a third player. She was also found to have said “I’m going to break her” with reference to the Claimant. The Defendant’s case was also significantly undermined by her own expert making a number of concessions about the appropriateness of the tackle in question. The Defendant’s case had never been that this was a mistake or a misjudgement but that the tackle had been a legitimate one. Accordingly, once the legitimacy of the tackle had been undermined by her expert’s concessions it was difficult for her to suggest that this was an error of judgment in the heat of sporting battle. Given these matters the judge found that the Defendant was in breach of her duty in the circumstances of this case. If he was wrong about the legal test he did find her to have been reckless so as to meet the higher, more stringent test suggested by the Defendant in any event.