In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Tuesday, October 23, 2012

Legal Liability and Scrums Part II

Following on from the post on this yesterday, I have come across THIS case from South Africa.

It involves a case where one schoolboy hooker caused the neck of another to break.

In a game in July 2005 between Hoerskool Stellenbosch and Hoerskool Labori from Paarl, the defendant, Alex Roux, was playing for Stellenbosch. The Plaintiff, Ryand Hattingh, was playing hooker for Labori. Early on in the game, Hattingh complained about the way that Roux was scrummaging. At the fourth or fifth scrum, Roux called "jack-knife", and moved his head to close the gap between his head and that of his tight-head - the gap into which Hattingh's head was to go. Hattingh was forced downwards, the scrum collapsed, and Hattingh's neck was broken. He sued in delict - the equivalent of tort in South African law.

The witnesses were, to say the least of it, impressive: former Springbok and scrum guru Balie Swart, referee AndrĂ© Watson and others. The trial judge, Fourie J., decided that Roux's actions were deliberate, and in breach of the Laws of the game. Accordingly, he found him liable. You can read that decision HERE (it should be noted for those unfamiliar with the language that, unsurprisingly for a game in Stellenbosch, some of the testimony is in Afrikaans). Roux appealed to the Supreme Court of Appeal, sitting in Bloemfontein,  which upheld the decision. You can read those judgements HERE.

It should be noted at this point that South African law is not quite the same as most Common Law systems, being a mix of Common Law and Roman Dutch; it would be closest to Scots law. But it is close enough for this to be at the least illustrative, and probably a precedent.

And it is highly significant. A deliberate, and dangerous, action gave rise to a liability to another player. What, then, of collapsing a scrum? Every prop has. Every single one. What about deliberately popping a hooker, or a pincer movement between hooker and loosehead to pop a tight head? Those are deliberate - ask Phil Vickery on the 2009 Lions - but they are also dangerous. These are part and parcel of the normal risks of the game, but where does normal pushing of the boundaries in the scrum lie, and where does it go beyond the pale? Would, for example, the deliberate joint action of hooker and loosehead to pop a tighthead up be worse than a tighthead's liability for letting a scrum drop where he was unhappy with the position he got on the engage but without any deliberately illegal or dangerous action?

Moreover, this makes the duty of a referee all the clearer. A referee has a duty to enforce the Laws made for player safety, and if the players do not observe these, then he will be liable for his failure to make them so do by enforcing those laws. If a player is scrummaging in a way brought to the attention of a referee, or which a referee should know is illegal - early, unstable drives or collapsing - the referee must stop this. Yet, to give a practical example, it's illegal (and dangerous) to drive an opponent up out of a scrum, and a referee MUST stop such a scrum immediately, and penalise the player driving up. It is no offence to stand up or be driven up - yet this is what usually gets penalised.

This case does not cite Vowles or Smoldon. It was the player who was found liable, not the referee (who was not sued; paragraph 62 of Fourie J.'s decision is interesting). Yet, when the referee has a greater duty of care to the player than another, opposing, player does, it seems very hard to see why this does not point to the same conclusion as those cases - and all the more so when one considers the cases, and reports, I dealt with yesterday. Wilful failure to follow or apply Laws made for the safety of players in the scrum can lead to liability for injuries arising from breach of those Laws.

And, again, the solution is simple; make such changes as are necessary to the Laws, and apply them. Apply the Laws made for player safety as they now are. Give us better and safer rugby, in one go. All that has to be done is to apply the Laws of the game.

So why does this seem to be regarded as such an unreasonable request?

(My thanks to Mnr. Pieter Koornhof of the University of the Western Cape and Universiteit Stellenbosch who first mentioned the High Court decision in this case to me.)


  1. Apply the law – yes, but which bits? Law 20.5 “throw in the ball without delay”, or Law 20.1 (j) “Stationary and parallel”?

    The usual problem is that the scrum is moving at the hit. After all that is what both teams are trying to achieve. How can the ball be thrown in straight when the scrum is moving?

    Rescind the first sentence of 20.5. Then the referee can ensure the scrum is set properly before allowing the scrum half to throw the ball in. The hit will be reduced because there is no point in pushing the opponents back – the referee will simply tell you to retreat to the mark. He will also have time to do his safety checks first and then be able to look for a credible feed.

  2. Why there are different laws? It's getting complex isn't it?

  3. Different legal systems in different countries will interact with the laws of rugby differently. Most major countries are either Common Law or, like Scotland or South Africa, very heavily influenced by the Common Law, so rugby is, in many of its assumptions and set-ups Common Law in its thinking about laws and legislates on the basis of Common Law assumptions. It can get complicated: in the Rabo Pro12 alone, you have five different jurisdictions (Ireland, Northern Ireland, Scotland, England and Wales, and Italy), three of which are pure Common Law (Ireland, NI and E&W), one Civil, but heavily Common Law influenced (Scotland) and one based on the Napoleonic Code (Italy).

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