The judiciary has spoken, and found England’s Freddie Steward innocent of a red card offence in his collision with Hugo Keenan. The whole event has triggered a massive debate.
But first, let’s go to last month’s judgment in London’s high court.
“In general, 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 the courts have deemed actionable injuries sustained where the conduct of the opponent fell below the standard of care appropriate and to be expected in all circumstances.”
Not my words, but so wrote the honourable Mr Justice Martin Spencer when handing down judgment in favour of the claimant, Dani Czernuszka, and against the defendant Natasha King.
On October 8th, 2017, Bracknell RFC Ladies played the Rams RFC Sirens in a women’s rugby developmental league match. A ruck formed towards the end of the match. Sirens’ Dani Czernuszka bent down to pick up the emerging ball, she was in a crouched position as Bracknell’s Natasha King came forward to deliver a ferocious tackle.
In grasping Czernuszka, King slammed the whole of her own body weight onto her much lighter opponent, driving her back and downwards. This caused Czernuszka to land in a sitting position, with her head and upper body forced down onto her legs. It took mere seconds, but that was enough to change Czernuszka’s life forever. It broke her spine, now a paraplegic she will be in a wheelchair for life.
The judge paid lots of attention to the submissions of the two expert witnesses, who will be well remembered for their exceptional international refereeing careers, Ed Morrison for the claimant, and Tony Spreadbury for the defendant.
Both are very honest brokers, and, during the trial Spreadbury conceded several key points to the issues raised by Morrison, who was immovable in his opinion that King’s tackle was both reckless and dangerous, and that it fell below an acceptable level of fair play.
There were other aspects to the case, such as King generally playing with high aggression, both physically, and in verbally sledging opponents.
In an earlier tackle on the claimant King had been hurt, needing assistance. After this incident, Czernuszka stated that she heard King say: “That f***ing number seven, I’m going to break her.”
While King denied this, the judge accepted that it had been stated, and opined that she was seeking revenge.
The actual judgement runs to many pages, obviously impossible to include it all here. However, the findings were based around several issues – the level of danger; that the defendant had the opportunity not to make the tackle; that she should have recognised the very vulnerable position of Czernuszka; and that, while there was no intent to injure, the tackle was “executed with reckless disregard for the claimant’s safety”.
Throughout the written judgement the phrase “duty of care” is frequently referenced or implied, and here his lordship is saying those words again.
He concluded by finding King liable for the injuries sustained by the claimant, in what he referred to as this “very unusual and exceptional context”.
Given the high quantum of the likely financial award following this verdict, the judgement may well be appealed.
Unlike two previous rugby cases which reached the high court, the referee was not named as a defendant. Both those catastrophic events involved the scrum, with the referee found culpable of failing to adequately officiate this set-piece phase of play. It’s well nigh impossible to see how a referee could be blamed for injuries sustained in an open play situation, such as described in this case.
The rarity of catastrophic injuries should not lead to a sense of security that they will never occur. They don’t, of course happen, until very suddenly they do.
In terms of the Steward red card, it has, effectively, been rescinded. The independent judicial panel found that Keenan’s own dynamics and his change of position prior to the collision provided enough evidence to mitigate the card to yellow.
The original decision by Jaco Peyper has provoked many different opinions, with highly-distinguished current and former players, coaches, referees, unable to agree on the correct level of sanction.
Some are aligned with the referee, while others found the collision to be an accident, and that the referee should, after review, have played on without penalty. Indeed, Keenan himself apparently agrees with that view, which is very generous but hardly correct.
Bear in mind that the panel, notably, did not go down the “accidental” route, rather they did find that the actions of Steward were reckless and highly dangerous, before addressing the issue of mitigation.
In respecting all of the differing views, including the judgment, my own red card opinion remains the same, and that the game would be better off had it been upheld.
In all its declared efforts to promote player welfare, and to rid the game of violent collisions involving the head, World Rugby’s judicial system must surely err on the side of caution – in other words on the side of brain-injured players.
There is a duty of care, and everybody, particularly players and coaches, need to remember it; neither should anyone forget Dani Czernuszka.
