Chris Caisley asks, what future for referees after Smoldon?

Chris Caisley is head of commercial litigation and sports law at Walker Morris.

The decision of Justice Curtis on 19 April 1996 in Smoldon v Nolan and Whitworth could have important consequences for amateur and professional contact sports even though the judge said his ruling would not extend to senior or professional matches.

Ben Smoldon, who was 17 when he broke his neck after the collapse of a rugby union scrum in 1991, alleged negligence against Michael Nolan, the match referee, for failing to enforce the laws of the game to ensure the safety of the players, thereby exposing them to unnecessary risk.

Thomas Whitworth, an opposing player, was accused of causing the scrum collapse but was held to be blameless.

Justice Curtis, finding Nolan liable, said that "in important respects [Nolan] had failed to exercise reasonable care and skill in the prevention of collapses by sufficient instruction to the front rows [of the scrum]".

Although this case turned on its own facts – there were reported to have been over 20 scrum collapses, it was an under-19 amateur match, and the referee was relatively inexperienced – this decision does pose the question of how far a referee's duty of care to players extends. For example, as professional rugby league is now going to be played in the summer, could a referee be held liable for allowing an obviously dehydrated player to continue? What if a referee allows a winter match to start in icy conditions which increase the risk of injury to players?

Although Smoldon relates to amateur rugby it could extend relevance to anyone who acts in a supervisory capacity, such as hockey or cricket umpires, or boxing referees who fail to stop persistent, dangerous actions which lead to injury.

Consider a situation in which a player has, on three occasions, committed a deliberate foul, no action has been taken by the official and on the fourth occasion an opponent suffers an injury, or where a referee exposes a boxer to unnecessary punishment. In either instance the official could be said to have failed to exercise reasonable care and skill and have exposed players to unnecessary risk by failing to dismiss the offender or to stop the fight at an earlier stage.

The fact that Nolan had compulsory insurance through the RFU was relevant and it will become increasingly important for no-fault personal accident insurance schemes to be set up for rugby players and clubs. On a practical level the decision could result in fewer people wishing to train to be qualified referees and lead to unsupervised amateur games at a junior level, thereby exposing players to greater risk.

Damages have yet to be awarded to Smoldon and Nolan is considering an appeal.