Courts tackle sporting injuries

Both the High Court and Court of Appeal have stressed that the case last year, in which rugby referee Michael Nolan was held liable for serious injuries suffered by a player in the collapse of a scrum, will not open a floodgate of claims against referees.

However, the outcome of the action involving plaintiff Ben Smoldon, who was left paralysed by injuries he received when he was 17, is bound to add a new dimension to sporting claims. They expose sports referees to litigation risks not faced before and those risks will not be confined to officials overseeing the game of rugby.

The case which led to last year's rulings is rated by Evill & Coleman personal injury partner Terry Lee, who represented Smoldon, as one of the most difficult he has handled. But he says that running it was also a classic example of good legal team work. "It was a textbook example of the efforts of all members of the legal team slotting in together," he says.

Lee praises the Legal Aid Board for the backing it gave the litigation. "I'm the first to criticise the Legal Aid Board if I think they deserve it, but on this occasion they really backed us to the hilt," he says.

Lee, himself a one-time rugby scrum-half, says the case raised a number of unique problems and broke new ground in the area of sporting injury claims by targeting a referee.

That aspect of the action brought its own problems because it was necessary to show that referees were bound by previously unrecognised legal responsibilities to protect those whose sporting activities they were overseeing.

And the problems did not stop there. Once such a duty had been established it was then necessary to establish the extent of that duty and what would constitute a breach.

In addition to the legal complexities of the case there was also heavy evidential conflict in the action; that side of the litigation was not made any easier by the difficulty Lee and his team had in finding experts.

Experts in the form of a rugby coach and a referee were needed. Finding a referee prepared to come forward in support of Smoldon's claim, Lee says, was one of the most difficult tasks he has ever faced in any litigation.

However, the necessary experts were found and liability was successfully argued by a legal team, which included Peter Andrews QC and junior counsel Philip Lehain, on behalf of Smoldon, whose damages award is now expected to run into seven figures.

The question worrying the sporting world as a result of the 17 December ruling by the Lord Chief Justice, Lord Bingham, Lord Justice Mummery and Sir Brian Neill, is whether the case will lead to a spate of new litigation or at least pose an additional threat to those involved in the organisation of higher-risk contact sports.

Lee thinks the decision poses no serious additional risk, although he does believe that the Court of Appeal went further than the High Court in assessing the extent of responsibility.

While in the High Court case the judge had specified that his decision was not likely to put at risk rugby referees other than those refereeing games by "colts" (under 19s), the Court of Appeal's ruling is interpreted as removing this limitation. The Court of Appeal said: "The level of care required is that which is appropriate in the circumstances, and the circumstances are of crucial importance."

In the absence at this point in the judgment of any reference or indication by the Court of Appeal that its ruling applied only to matches involving Colts, Lee believes the Appeal judges expanded the duty of care owed by all referees and not just those refereeing junior players.

The Appeal Court judges also refused to rule that there had to be a degree of recklessness on the part of a referee in order to trigger an action.

But Lee stresses that the threshold leading to an action against a referee is not easily crossed: "In the final analysis, I have no doubt that no responsible sporting official has anything to fear from this case."