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Allport v Wilbraham, Court of Appeal, 15 December 2004

22 December 2004
The issues

Rugby – Collapsed Scrum – Sport – Claimant Suffering Severe Spinal Injury Following Collapse Scrum In Rugby Match

The facts

The Claimant was playing for Stourbridge 3rd xv in a match on 3rd October 1998 against Cheltenham 3rd vx. About 20 minutes into the match (in what was probably the fourth scrum) as the two packs came together the Claimant suffered a severe blow to the head or neck. It was unclear what precisely had happened but the Judge found that there had not been a safe engagement. The injury was catastrophic and the Claimant would be paralysed neck down for the rest of his life. The matter came before the Judge on liability only and in particular as to whether the referee failed adequately or at all to control the scrimmaging, to enforce the law of the game, to manage the scrum in accordance with law 20 and whether as a result the two front rows came together in an uncontrolled manner. (Law 20 provides that before commencing engagement each front row is to be in a crouched position with heads and shoulders no lower than their hips so that they are within 1 arms length of their opponent’s shoulders. Each front row should engage in the sequence of crouch then pause and only engage on the call “engage” given by the referee).

The Judge dismissed the claim preferring the evidence of the Defendant’s witnesses to that of the Claimant’s witnesses. The Claimant appealed.

The decision

The Judge heard evidence from the Stourbridge captain and scrum half and the Stourbridge tighthead prop. For the Defendant, Mr Wilbraham himself gave evidence together with the Cheltenham hooker. There was a difference of opinion as to the question of whether or not the referee gave the instruction to engage at the material scrum. The Judge preferred Mr Wilbraham’s evidence finding him honest and conversely finding the evidence of one of the Claimant’s witnesses as unreliable. The Claimant’s appeal was based on the contention that the Judge was not even handed in his approach, had misunderstood some of the important evidence, and had failed in the material respect to explain his conclusions.

Comments

In Thomas v Thomas the House of Lords had laid down the principal that an appellant Court when dealing with the question of fact tried by a Judge without a Jury and in the absence of any misdirection of himself by the Judge, should not come to a different conclusion on the printed evidence unless it was satisfied that any advantage enjoyed by the Trial witness by reason of having seen and heard the witnesses could not be sufficient to explain or justify the Judge’s conclusion.

2. In Flannery v Halifax Estate Agencies Limited the Court of Appeal noted, in respect of the duty of a Judge to give reasons, that where there was a straight forward factual dispute depending on which witness was telling the truth, that it was likely to be enough for the Judge to indicate simply that he believed one witness rather than another. Where however the dispute involved something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the Judge ought to enter into the issues and explain why he preferred once case over the other. This was particularly likely to apply in litigation in which there was disputed expert evidence. It was not limited to such cases however.

3. The Judge had had no real alternative but to decide which of two versions of events was inherently more likely and which of two witnesses appeared to him to to be inherently more believable. He had decided that Mr Wilbraham was easily the most impressive witness as he was supported at least on one issue by the evidence of another witness who he also found to be honest. He had said he was unimpressed by the two witnesses who had given evidence for the Claimant. He had also had the benefit of other evidence which he had considered rightly to be of significant assistance in particular the fact that the two teams were content to continue with the match under the referee under the material scrum, the absence of any complaint to the referee during the match, and the absence of any complaints to or about the referee after the match and in particular the marking accorded to the referee by one of the witnesses for the Claimant.

Appeal dismissed.

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