Terry Lee considers rugby referees' duty of care.

Terry Lee of Evill & Coleman represented Smoldon.

Rugby accident victim Ben Smoldon's £2m settlement breaks new ground as the first case to be brought against a rugby referee. It appears to extend the circumstances when a court will be prepared to find a match official liable of having breached his duty of care to players.

The case, Smoldon v Whitworth & Nolan, arose after Smoldon, a hooker, broke his neck in a collapsed scrum during a colts-level rugby game eight years ago. The case established the referee's liability but not that of the opposing prop forward.

However, it is unlikely to lead to a spate of sporting injury cases. Although the case has clarified the duty referees have to players, the judge emphasised this was a judgment in favour of the plaintiff on its specific and individual merits.

The trial judge had to consider important issues of fact, particularly the degree of control which is exercised by the referee, and the number of incidents that take place which could be labelled potentially "dangerous" and the nature of any duty of care relating to the referee.

The judge said he could not "stress too strongly" that his decisions were based on special considerations, including the particular facts of the case, the vital fact that it was a colts game, the law of rugby as modified for colts and the laws and customs of rugby in the 1991/92 season.

When the case reached the Court of Appeal, Lord Justice Bingham referred to the limited circumstances that would enable liability to be established.

Reference is made in the judgment to the fact that no special or new test is being applied. Both the judge and the Court of Appeal made it clear the breach of duty must be higher than "mere" negligence before liability can be imposed, therefore the "responsible" official has nothing to fear.

The judge relied upon Condon v Basi, where the "reckless and dangerous manner" of the defendant footballer's late, sliding high tackle in a local Sunday league match had been negligent. The judge found that the Bolam test – the bedrock for determining liability in medical negligence cases – was not applicable to a rugby referee. Neither did the principle of volenti apply since the plaintiff could not be held to have consented to the referee's breaches of duty, according to the judge.