The recent High Court decision in Czernuszka v King [2023] EWHC 380 (KB) considered the test for negligent liability in relation to dangerous tackles in sport.

In October 2017, Ms Czernuszka was playing in her first competitive game of rugby and was left paraplegic and bound to a wheelchair for the rest of her life, as a result of a dangerous tackle carried out by Ms King.

Whilst injuries are an accepted risk in sporting activities, especially those involving high contact, such as rugby, the court had to consider whether the tackle carried out by Ms King was so reckless (or carried out with a high degree of carelessness) that it could be deemed to be negligent.

Each case will, of course, be determined by its own specific facts, and this case was no different. The court had the benefit of video footage of the whole game and the incident, as well as hearing witness evidence from other participants in the game.

Ms Czernuszka had only recently taken up rugby and had only played in a few friendly games up to the date of her injury, including importantly a previous developmental game against Ms King’s team in May 2017. Ms Czernuszka was around five foot three inches tall and nine stone in weight, whereas Ms King, an extremely experienced rugby player was around 16 to 17 stone.

In both the May and October 2017 games, Ms King had engaged in swearing and ‘trash talk’ at her opponents and had caused injury to some of Ms Czernuszka’s teammates in the earlier game in May, including punching a player and causing another to suffer a broken arm.

During the October 2017 game, Ms King was found to be becoming increasingly frustrated as her team were losing and she had been embarrassed earlier in the game when attempting to tackle Ms Czernuszka. Witnesses told the court that Ms King has said that she was going to ‘break’ Ms Czernuszka.

Towards the end of the October 2017 game, Ms Czernuszka, following a scrum, bent down to take the ball from between one of her teammate’s legs. The court were told that she was in a ‘highly vulnerable position’ with both her head and neck exposed. Rather than compete for the ball, Ms King chose to tackle Ms Czernuszka by putting her whole bodyweight forward and down on Ms Czernuszka’s back. Ms King’s full weight landed on top of Ms Czernuszka with her head, neck and spine all at risk.

The court heard expert evidence from two experienced rugby referees in connection with whether they deemed the tackle to be dangerous and reckless. Ms King’s expert, who had originally said that he felt Ms King had executed a legal tackle, somewhat reverted from his position upon cross examination and conceded that the tackle had been dangerous.

The judge considered all the circumstances of the case. In the present case, the players should have been aware that the game was being played in a developmental league and that players were still learning the game, and it should have been played in that spirit. It was clear that Ms King was far too an experienced player for this league and sought to impose herself on her opponents.

The judge determined that Ms King was looking for an opportunity to get revenge on Ms Czernuszka and that a metaphorical ‘red mist’ had descended over Ms King’s eyes. Whilst Ms King may not have intended to injure Ms Czernuszka, Ms King’s ‘tackle’ was executed with a ‘reckless disregard to the Claimant’s safety in a manner which was liable to cause injury and that the Defendant was so angry by this time that she closed her eyes to the risk she was subjecting the Claimant, a risk of injury which was clear and obvious.’

Following previous case law, the judge held that within the law of negligence, the test is ‘whether the Defendant failed to exercise such degree of care as appropriate in all the circumstances.’

Negligent findings in sport are still relatively rare and the courts will consider the circumstances of each individual case to determine if a tackle is deemed to be reckless. The previous match between the teams and the conduct of Ms King in that match was clearly a relevant factor in this case as well as the circumstances surrounding the tackle itself. Further, the fact that Ms King simply got up and walked away from Ms Czernuszka following the incident may have led the judge to come to the conclusion he did.

The judge concluded that the tackle by Ms King had been negligent, and Ms Czernuszka is now expected to recover significant damages for her injuries.