Clark v Elbanna: Clarifying the Overlap of Recklessness and Negligence in Contact-Sport Injuries

1. Introduction

In Clark v Elbanna ([2025] EWCA Civ 776) the Court of Appeal was asked to revisit the perennial issue of civil liability for injuries sustained during organised sport—in this instance amateur rugby. The claimant, Mr Clark, suffered catastrophic spinal injuries after a forceful collision with the defendant, Mr Elbanna, during kick-off. At first instance Sweeting J held the defendant liable, finding his conduct “reckless”. The appeal concerned:

Whether the trial judge applied the correct legal test for breach of duty in a sporting context;
Whether a finding of “recklessness” necessarily imports a finding of “negligence”;
Whether the judge gave adequate reasons, particularly on foreseeability of serious injury.

Permission to appeal on factual grounds was refused; the Court of Appeal therefore treated the trial judge’s detailed factual findings—heavily informed by video evidence—as fixed. Lady Justice Nicola Davies delivered the leading judgment, with Edis LJ and Bean LJ concurring.

2. Summary of the Judgment

The Court of Appeal:

Dismissed the defendant’s appeal in its entirety.
Upheld the respondent’s notice, confirming that the trial judge’s description of the conduct as “reckless” necessarily satisfied the lesser threshold of negligence.
Clarified that, following Smoldon v Whitworth and Caldwell v Maguire, there is no legal requirement to prove recklessness to establish liability in sports tort claims—ordinary principles of negligence suffice. Nevertheless, where recklessness is properly found it “encompasses” negligence.
Affirmed that foreseeability of serious injury was implicit in the trial judge’s findings: the defendant “courted the risk” that a forceful collision with an unprepared player could cause serious harm.

3. Analysis

3.1 Precedents Cited

Condon v Basi [1985] 1 WLR 866
- Laid down the objective standard of care in sport—graded to the level of competition.
- Adopted the Australian reasoning in Rootes v Shelton: rules of the game are a factor but not conclusive on reasonableness.
Smoldon v Whitworth [1997] ELR 249
- High “threshold of liability” in fast-moving sports; momentary errors not actionable.
- Expressly rejected a requirement of recklessness.
Caldwell v Maguire and Fitzgerald [2001] EWCA Civ 1054
- Confirmed Smoldon; something “more serious” than momentary carelessness required, but not necessarily recklessness.
Czernuszka v King [2023] EWHC 380 (KB)
- Recent High Court rugby decision reiterating that recklessness is unnecessary if negligence is proven.

The present judgment synthesises these authorities by stating the relationship positively: a properly-founded finding of recklessness will ipso facto amount to negligence, but a claimant need only prove negligence.

3.2 Legal Reasoning

Lady Justice Davies’ reasoning proceeded in three stages:

Characterisation of Pleadings and Cause of Action
- The claim sounded in ordinary negligence; “reckless” appeared merely as a descriptive adjective.
- Therefore, the trial judge’s task was to decide whether the defendant breached the duty of care owed to a fellow player.
Assessment of Breach (objective standard in context)
- Key factual findings (para 25 of CA judgment) showed the defendant ran directly at the claimant, could see his back, and declined available measures—slowing, deviating, or softening contact.
- This conduct exceeded “momentary misjudgment”; it was a conscious, continuing course courting obvious risk.
Foreseeability of Serious Harm
- The court rejected the appellant’s submission that serious injury was not foreseeable. A forceful, unbraced collision from behind with a near-static player entailed an evident risk of fracture.
- Thus both limbs of negligence—duty/breach and foreseeability of damage—were satisfied.

Ratio decidendi: In contact sports, liability arises where a participant’s conduct falls below the standard of care appropriate to the game’s context, and the resulting risk of significant injury is reasonably foreseeable. A finding of recklessness, though unnecessary, automatically subsumes negligence.

3.3 Likely Impact of the Decision

Procedural Efficiency: Pleadings may streamline to allege mere negligence; “recklessness” can be reserved for aggravated circumstances without affecting burden of proof.
Evidential Emphasis on Video: The appellate court’s reliance on slow-motion footage underscores the growing importance of audiovisual evidence in sports litigation.
Coaching & Training: The judgment highlights a duty on players—even at amateur level—to “pull out” or moderate tackles when foreseeably dangerous, potentially influencing coaching on safe kick-off chases.
Insurance & Governing Bodies: Club insurers may reassess risk profiles; governing bodies could revisit disciplinary thresholds, as civil negligence can arise even where foul-play panels find no breach.
Clarification of Legal Threshold: Future defendants cannot argue that absence of recklessness defeats negligence claims; conversely, claimants can regard recklessness as an evidential accelerant, not a legal prerequisite.

4. Complex Concepts Simplified

Duty of Care in Sport: Every participant owes fellow players a legal obligation to take reasonable care to avoid causing injury, judged against the sport’s inherent risks.
Negligence vs. Recklessness: Negligence = failure to take reasonable care.
Recklessness = conscious disregard of a known risk—“a higher, more stringent” standard. In civil sport claims, proving negligence is enough; recklessness, if shown, automatically includes negligence.
Foreseeability: A harm is “reasonably foreseeable” if a reasonable person in the defendant’s position would anticipate a real, as opposed to far-fetched, risk of that type of injury.
Momentary Error of Judgment: A split-second miscalculation common in fast games; usually not actionable unless it crosses the threshold into unreasonable risk-taking.
Objective Standard “In Context”: The court judges conduct by what a reasonable player in that level of competition (here, organized amateur) would have done, not by the individual’s subjective intentions.

5. Conclusion

Clark v Elbanna cements an important clarification: while sports-field injuries demand a context-sensitive approach, the orthodox law of negligence controls, and recklessness is an evidential escalator, not a separate legal hurdle. The decision affirms that amateur participants cannot hide behind the rough-and-tumble nature of rugby when their conduct deliberately or consciously ignores obvious dangers. Equally, it reassures defendants that honest, split-second misjudgments remain outside liability—provided they do not “court the risk” of serious harm. In the broader tapestry of sports law, this judgment refines the spectrum between permissible hard play, negligent carelessness, and truly reckless aggression, offering clearer guidance for litigants, referees, coaches and insurers alike.