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.

Monday, October 22, 2012

Legal Liability and Scrums.

Take a small car - this being rugby, let's say a French one, a Citroen C4. In fact, take two. Suspend one 15 centimetres - six inches - over each of your shoulders.

Now let them drop.

That's what it is each member for a professional front row to take the hit of a modern scrum. If you're an international hooker, since hookers take a bit more of the hit, you're talking a family saloon like a C5, onto each shoulder. 3kN of an impact. Ten or fifteen times a game.

Brian Moore - referee, former international hooker and lawyer - has been pointing out for a while - correctly - that big-hit scrummaging is both dangerous and pointless. It's pointless because if you referee according to the laws of the game, which demand that the scrum be steady and static before the ball goes in, you get little or no benefit from it. It's dangerous because massive impacts are not just dangerous in and of themselves, and especially over the long term, but because they are unstable and destabilise a scrum.

And in the Daily Telegraph today, he points out that the three year study, conducted by Bath University, on scrums at all levels of the game now provides the evidence, which can - via BokSmart - be seen HERE (I note in passing that if the figure of 18kN peak force on the engage means what I think it does, you're dropping those family saloons from twice the height I mention above). He thinks this could lead to legal liability for the IRB for failing to legislate to make the game safer.

He is right, but what he doesn't know is this point has already been litigated. It was an Australian case, Agar v. Hyde. It was not successful, but the key reason why it failed was that the the IRFB was not an incorporated body with a duty of care, but rather enthusiastic amateurs giving their time up. That has now changed: the IRB is now a company incorporated in Dublin, and the referees, and many of the law makers, work for it. The reason why Agar v. Hyde failed no longer exists.

The dangers do. About 20 years ago, a truly ground-breaking piece of research was done at Stoke Mandeville hospital in the UK, where every catastrophic neck injury from rugby going back forty years was analysed. What it showed, in the paper by JR Silver (a man whose ground-breaking work has doubtless saved the necks of many rugby players, and who deserves the thanks of the entire game), was that what broke necks was big, unstable impacts and twisting (you can get a flavour of it in more recent papers HERE and HERE). As a result, collapsing the maul was banned, and scrums were made steady and static, instead of the moving feasts they had been. This worked not just well, but brilliantly: the number of broken necks dropped off dramatically.

But around ten years ago, things started going wrong. The requirement for scrumhalves to put the ball in straight died a death, as did the requirement not to push before the ball. As Brian Moore has pointed out, the net result was a one-third increase in the pushing, as hookers no longer had to hook, and a positive reward for pushing before the ball and loading up the impact on the engage to get that ball rolling. It's supposed to be strictly enforced that the ball go in straight: in practice, the ball can now be fed into the second row with impunity. A new offence of "not taking the hit" was invented: you could now be penalised because the other team were pushing before the ball, and making the scrum unstable and not on the mark. If you want a perfect example of where this lunacy, see THIS clip from the weekend, where Leicester Tigers are driving before the ball - second rows' legs pumping - yet Romain Poite sinbins the Ospreys loosehead for not pushing back.

It is dangerous, it is illegal under the laws of rugby, it has destroyed the art of proper scrummaging, yet the requirement to increase the impact imposed by this made-up rule has led to ever bigger, and ever more dangerous. As you can see from the data in the BokSmart presentation linked to above: neck injuries are going up again.

The net result has been more dangerous scrums, more resets, worse scrummaging and more dangerous scrummaging: bad rugby, and dangerous rugby. You have here an active failure to apply laws made for player safety some 20 years ago, when the risks have increased as a result of that failure. That has led to referees being held liable for broken necks arising out of collapsed scrums in Smoldon v. Whitworth and Vowles v. Evans

And there is no excuse for it. Three years ago, when the insane proposals to allow the maul to be collapsed formed part of the unloved and unmourned Experimental Law Variations (ELVs), I wrote an article* setting out in more detail why this created a liability. The reasoning is exactly the same here; in fact, it is stronger.

The failure by the IRB is not just bad at law, it is bad rugby. I love scrummaging. I have played as a prop, as has every male member of my family for the last three generations at some stage. I have also held my hooker's neck immobile, waiting for an ambulance to come after he broke his neck on a slipped engage (thankfully, his cord was fine). Scrummaging has risks, and always will. I know the risks, and have accepted them, as has every other prop. But it is NOT acceptable to make those risks greater by ignoring the Laws of the game, and at the same time removing the art, the technique and the skill of good scrummaging and replacing them with a hit-drive-drop charge. It is no part of good rugby to destroy the art of hooking, to substitute races over the mid-line for real propping duels and to have endless resets because of huge, artless impacts. Not only is there no legal reason to stand for this, there is no rugby-playing reason - and, ironically, that just increases the legal risks.

All this requires to protect the game, and protect players, is to make the recommended changes, apply the Laws and thereby bring back proper scrummaging. In fact, even applying the laws as they stand would go a long way to safety, because there's no point in putting everything into a huge hit if you then have to give ground back to the mark. Everyone would benefit.

So why on earth does it seem to be so very, very hard to have the Laws of the game, made to protect players, enforced?

*Bringing It Down On Their Own Heads: Negligence and Changes to the Law of Rugby (2009) 27 ILT 98.

Update: one typo corrected.


  1. Sent here by Chairman Moore, recommended reading succinctly put that deserves a wide audience.

  2. Aye, excellent stuff.

    Pressure needs to be exerted on the IRB to look seriously at this. If it takes litigation from the next poor f*cker that gets badly hurt, so be it. But I would hope against hope that it won't come to that. There is no need for it, and no excuse for it, now.

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  5. It seems I'm on the right track, I hope I can do well. The result was something I did and was doing to implement it.