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crossref


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Are you saying you would have penalized Lewsey?
If I was reffing Eng v Aus? No, but I would be very cross with the TMO who had failed to spot and show me thenprevious punches

I would be worried that control had been lost and trouble was looming. I would be telling the To4 to watch as close as I could for cheap shots, late tackles etc

And for me playing rugby with the primary aim being to hurt your opponent is certainly against the spirit of the game.

The charter says
At first glance it is difficult to find the guiding principles behind a game which, to the casual observer, appears to be a mass of contradictions. It is perfectly acceptable, for example, to be seen to be exerting extreme physical pressure on an opponent in an attempt to gain possession of the ball, but not wilfully or maliciously to inflict injury

And accordingly

Law 9.11 says
Players must not do anything that is reckless or dangerous to others ...

Law 9.13 says
A player must not tackle an opponent early, late or dangerously..



And over and above all this is the Law of the land (confirmed by this recent case) which says that players owe each other a duty of care, and cannot behave negligently or recklessly. (and certainly can't set out to injure)
 
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Marc Wakeham


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He he, My opinion is much sought after 🙂 but sometimes I might miss a question or the question seems obscure. But I have tried hard to answer bud above

Buds main question seems to be that he doesn't understand the judgement, and would like me to explain it to him 🙂
I "love" the way you reply to prove somes negative point about you. Nice work.
 

Stu10


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See post #87;)

Reading the judgment again will not clarify what has been written in unclear terms. Perhaps you could explain it for me or point me somewhere else in the transcript where it is clear?

Perhaps 58(vii) helps:
"I have no doubt that the Defendant did, as the Claimant said, utter the words: “That fucking number 7, I’m going to break her.” Thereafter, she was looking for an opportunity to get her revenge on the Claimant: the red mist had metaphorically descended over the Defendant’s eyes;"​

So the judge decided that she did say that and still considers there was no intent? 🤷‍♂️If he had determined that she did not say that then the judged lack of intent may be clearer.

That aside, again you evade the other aspects and questions that I raised.🤷‍♂️
For me it reads pretty clearly

There was no specific intent to break her spine or otherwise cause life changing injury

But there was intent to hurt her and recklessness as to what might happen when she did that

(sorry, I don't have specific views on Lewsey or Callum because i haven't researched/ reviewed either incident)

I'm inclined to agree with both of your posts above. She clearly had intent to injure, though I agree it is unlikely she intended the injury to be like this (bruised and winded vs broken spine); so I find it baffling that the judge has concluded there was no intent to injure.
 

crossref


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I'm inclined to agree with both of your posts above. She clearly had intent to injure, though I agree it is unlikely she intended the injury to be like this (bruised and winded vs broken spine); so I find it baffling that the judge has concluded there was no intent to injure.
don't forget that intent to injure wasn't alleged - so there was no evidence presented to that effect.

what was alleged, and evidence presented to support, was : recklessness.

(I am sure this would be because, as well as being very hard to prove, intent was not really relevant : DC didn't need to show intent, showing recklessness was sufficient to win her case.)
 

crossref


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Perhaps this is helpful

The judge did not find that there was intent

BUT also

The judge did not find that there was no intent


The judge actually made no finding on intent either way .. he didn't need to.

this is what he said
I do not find that the Defendant intended to injure the Claimant, indeed that is not
alleged against her: I do find, though, that the “tackle” was executed with reckless
disregard for the Claimant’s safety in a manner which was liable to cause injury and
that the Defendant was so angry by this time that she closed her eyes to the risk to
which she was subjecting the Claimant, a risk of injury which was clear and
obvious;
 

belladonna

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C'mon gents if you are going to be forensic about it get you facts correct.

Defendant winded herself seems also to counter the perspective that she was larger and stronger and would always come out on top.

Only 2 inches taller, but...

"10. In this game, the claimant, who was 5 foot 3 inches in height and weighed 9 stone, played in the position of flanker with number 7 on her back. [...] The defendant is 5'5" tall and weighed between sixteen and seventeen stone at that time."

 
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belladonna

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If you ask 100 open side flankers: "given that situation what would you do?"

What answer do you think you would get?

If any of them didn't say smash the scrum half, I would offer that they were not open side flankers and you could equally apply that to all forwards.

Assuming the 100 hypothetical open-side flankers are not playing in a developmental league, are playing within the laws of the game, are not hell-bent on exacting revenge with no regard for the safety of their opponent, and are not doing something obviously dangerous and liable to cause injury, they should be fine.

"Discussion and Findings

(i) Although this was a league match, the nature of the league being developmental meant that the players were still learning the game and it should have been played in that spirit: the players had a duty to be mindful of each other and to play with the understanding that enjoyment and learning were the main objectives, not winning;

[...]

(ix) The Defendant, without any regard for the well-being or safety of the Claimant and intent only on exacting revenge, executed the "tackle" in a manner which is not recognised in rugby: she drove the Claimant backwards and, importantly, downwards using her full weight and strength to crush the Claimant in a manoeuvre which was obviously dangerous and liable to cause injury;"


What about this one?

What's wrong with this tackle exactly? Wouldn't a better example be the spear tackle on BoD?
 
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SimonSmith


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If I was reffing Eng v Aus? No, but I would be very cross with the TMO who had failed to spot and show me thenprevious punches

I would be worried that control had been lost and trouble was looming. I would be telling the To4 to watch as close as I could for cheap shots, late tackles etc

And for me playing rugby with the primary aim being to hurt your opponent is certainly against the spirit of the game.

The charter says


And accordingly

Law 9.11 says
Players must not do anything that is reckless or dangerous to others ...

Law 9.13 says
A player must not tackle an opponent early, late or dangerously..



And over and above all this is the Law of the land (confirmed by this recent case) which says that players owe each other a duty of care, and cannot behave negligently or recklessly. (and certainly can't set out to injure)
My bold added. Lewsey's hit was neither of those. Legal, on time, and not cheap. Play on, all day long.

Every tackle or challenge carries a degree of danger, for either player. If your implied argument is that Lewsey should have dialled back, I disagree. Physical dominance is part of the game.
 

crossref


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I don't think the Lewesy tackle teaches us very much (Bud introduced it, then pressed me several times for an opinion .. although I note he hasn't offered any opinion of his own).

Physical dominance is certainly part of the game but if you want to discuss the tackle you do need to directly address the critical Laws question : was it dangerous or reckless ? (9.11).

And we could also consider whether it fails under the spirit of the game.. which of these two alternatives describes it best ?
. It is perfectly acceptable, for example, to be seen to be exerting extreme physical pressure on an opponent in an attempt to gain possession of the ball, but not wilfully or maliciously to inflict injury
(The latter, right?)

But a tackle where I think we can learn some lessons from the DC v NK case was the u14 SA schools incident I linked to
..an u14 game, not England v Australia
.., a much heavier player neglecting his duty of care to a much smaller one, and acting dangerously negligently and recklessly, without any consideration for the real possibility of injury
 
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Rich_NL

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Executing a tackle well within the laws of the game, in a way that you might well be trained to tackle, in fact. That alone makes the bar for recklessness extremely high, and negligence all but impossible. There are no extenuating circumstances that make that particular tackle reckless from one he might have carried out 5 minutes later or 10m upfield.

If he'd picked the boy up and carried out a wrestling piledriver, fair enough. But legal grounds don't cover "enough to make you wince".

If there were a court case there it would be against SARU or world rugby for allowing a match up between such disparate youth players. I suspect that without a very serious injury, that would get nowhere.
 

crossref


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No lessons at all to be drawn from DC v NK then? Completely different, no comparison at all. 😕

So what lessons can we learn from the case? What's the takeaway for community refs? Anything at all we can apply in our own games?

Seems like two referees came out of that case very poorly (the ref in charge, and Tony S), perhaps there is something for us?

Any thoughts on Tony Spreadbury's testimony perhaps ?

What went wrong for TS was that he focused on rugby technicalities and forgot about recklessness and duty of care
 
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Harry

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Any thoughts on Tony Spreadbury's testimony perhaps ?
I assist our barrister to train our people to give evidence in courts and public inquiries. Written evidence can be very dangerous to the author. The other sides in the case may have months to examine that evidence and prepare traps for the unwary "expert witness" before ripping them to shreds in the witness box.
 

crossref


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I assist our barrister to train our people to give evidence in courts and public inquiries. Written evidence can be very dangerous to the author. The other sides in the case may have months to examine that evidence and prepare traps for the unwary "expert witness" before ripping them to shreds in the witness box.
indeed, but Ed Morrison was in the same position and came out well.
 

Harry

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indeed, but Ed Morrison was in the same position and came out well.
Oh yes of course. But why? Was his written evidence correct and easily defended or was he better prepared by his side (ie trained as our people are) The problem with written evidence is; if it is not contested it may be read out in court by the clerk and you don't have to attend, or, the other side/s go for you and it gets very nasty. They may ask you a question that sounds innocent enough but during prolonged cross examination it gets twisted. Eventually you end up arguing against your own written evidence and they blow you out of the water.
 

crossref


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Oh yes of course. But why? Was his written evidence correct and easily defended or was he better prepared by his side (ie trained as our people are) The problem with written evidence is; if it is not contested it may be read out in court by the clerk and you don't have to attend, or, the other side/s go for you and it gets very nasty. They may ask you a question that sounds innocent enough but during prolonged cross examination it gets twisted. Eventually you end up arguing against your own written evidence and they blow you out of the water.
i think that what went wrong for TS was that he focused on rugby technicalities and forgot about recklessness and duty of care
 

Harry

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i think that what went wrong for TS was that he focused on rugby technicalities and forgot about recklessness and duty of care
Very likely. I have to be careful, my experience is in a very narrow field (vehicle related defects leading or not to a serious accident) But I am certain that preparation is the key. If you are to be an expert witness get good legal advice and if they don't want to rehearse you, beware!
 

Phil E


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What do I take from this case?

The scrum half is a protected species, we hear this all the time.
Now we know why (in case we didn't before), when picking up the ball from a ruck the SH is in a vulnerable position, bent over, head and neck exposed.
Now we know why you can't play the SH.
Because the results could be, as in this case catastrophic.
 

BikingBud


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Only 2 inches taller, but...

"10. In this game, the claimant, who was 5 foot 3 inches in height and weighed 9 stone, played in the position of flanker with number 7 on her back. [...] The defendant is 5'5" tall and weighed between sixteen and seventeen stone at that time."

I did not offer anything other than an observation of larger and stronger not always coming out on top, happens all the time watch FDK.

I observe and you counter, filling in with your own perception about how important size difference was.

Going by the transcript it didn't appear to affect every tackle did it? See 58(vi)

The C wasn't getting absolutely mullered at every twist and turn so possibly no need to intervene and the referee may have had a little smirk to themselves to see the D struggling after making a fool of herself @63:02.
 

BikingBud


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Assuming the 100 hypothetical open-side flankers are not playing in a developmental league, are playing within the laws of the game, are not hell-bent on exacting revenge with no regard for the safety of their opponent, and are not doing something obviously dangerous and liable to cause injury, they should be fine.

"Discussion and Findings

(i) Although this was a league match, the nature of the league being developmental meant that the players were still learning the game and it should have been played in that spirit: the players had a duty to be mindful of each other and to play with the understanding that enjoyment and learning were the main objectives, not winning;

[...]

(ix) The Defendant, without any regard for the well-being or safety of the Claimant and intent only on exacting revenge, executed the "tackle" in a manner which is not recognised in rugby: she drove the Claimant backwards and, importantly, downwards using her full weight and strength to crush the Claimant in a manoeuvre which was obviously dangerous and liable to cause injury;"




What's wrong with this tackle exactly? Wouldn't a better example be the spear tackle on BoD?
***Perhaps longer than I wanted, and possibly longer than you can be bothered to read to but I felt a need. As I said in an earlier post this may change the game was we know it. I feel management of mid air challenges will also come under very close scrutiny when we get a paraplegic in court, perhaps it will be too late then!***

@belladonna - You are adding conditions that may or may not apply.

Again I offered a relatively simple question would the open side flankers wish and vocalise to "smash" the scrum half.

I feel most, if not all would, and when they have finished there go looking for the outside half as well. Love it or hate it that is the daily context of the game. It is how it works and it is what we see on showcase rugby all the time. Therefore, the concept of smashing people is the absolute norm.

I believe Josh Lewsey may have had a little red mist and been looking out for Rogers, it was a niggly match and there was a minor altercation immediately before. But my reading is that his intent was to smash him. Rogers teams mates obliged and gave JL an open door, a legal tackle but was there intent or was it a reckless action, we should differentiate as the judge appears to, (hence my concern over his use of the words.) I have absolutely no doubt Lewsey's intent was to "smash" Rogers.

The outcome as I understand was broken ribs for Rogers, is this material? Perhaps it should be as the case in question would not have been brought if the C had got up dusted herself off and possibly laughed at the D as we are told occurred after 63:02 in the subject match.

You could now ask what most players understand by reckless. I would offer FDK as a prime example, wanton disregard for his own or other player's safety. If we want to remove reckless from the game we could do much worse than start there. But the deciding line and one that we may be asked to apply many times in a match can often be paper thin, you will see the counsel and the judge spent quite a lot of time over this.

60. .....the test is whether the D failed to exercise such degree of care as was appropriate in all the circumstances:

Tough one that to try and split in the middle of a match and ensure you are allowing a good game but protecting all participants. And also very easy to come back afterwards with outcome bias and say it must have been illegal as Player X suffered life changing injury. Apparently Rogers cannot surf now. How does that fit on the sliding scale, I know I am being flippant but it seems so many on here live in a sterile forensic place with plenty of time to assess and review but still cannot get it correct or reach a consensus. How does it work in the frantic 80 mins of a match with chirping scrum halves and open side flankers wanting to smash.

The legal process also is not absolute. A civil case, "on the balance of probabilities" means that my specialist was better at persuading the judge than your specialist.

We are asked to make those judgments during the game with no reference to experts and no ability to stop, rewind, review or interrogate people on what they may have intended or what might have occurred in the previous game.

I have tried on here to explain some of the areas that remain grey for me, some of them still so despite this being an extended discussion. I find it extremely difficult when people do not look only at the evidence, are mis-reading the evidence, are not able to state their argument without introducing "evidence" that is not there, and interpreting what may only now be apparent with significant hindsight and call out the match referee on the day. They were fulfilling a role, enabling sport for players. See the WR Charter and Principles of the Game:

"At first glance it is difficult to find the guiding principles behind a game which, to the casual observer, appears to be a mass of contradictions. It is perfectly acceptable, for example, to be seen to be exerting extreme physical pressure on an opponent in an attempt to gain possession of the ball, but not wilfully or maliciously to inflict injury.
These are the boundaries within which players and referees must operate and it is the capacity to make this fine distinction, combined with control and discipline, both individual and collective, upon which the code of conduct depends."

I would offer that as so many people do not know and understand the LotG, even fewer have knowledge, have read or understand those principles.

EDIT: So was the judge's perspective 58(i) - ""that the players were still learning the game and it should have been played in that spirit" based upon a factual statement at the trial or was it implied because everyone knows the "Principles of the Game"? Was it challenged, was it made obvious to all players, coaches, and the match officials, was it reiterated during the game or was it and unrealistic expectation? Is the difference between what "should" and what does happen sufficient to demonstrate legal liability.

Often interesting to undertake a substitution test in these circumstances:
  • Context - The D covered the ground and made the tackle in less than a second, using the time stamps on the stills.
  • So the questions, would other players do it?
    • Absolutely - People watch telly, watch youtube, see "smash" and want to.
  • Was there some pre-empting the ball lift, potentially but with stills different to tell.
    • Para 61- The judge did not consider the D offside.
    • If the ball had been lifted would it have been legal?
      • Perhaps!
  • Was it a dangerous tackle?
    • If the ball had been lifted and the D had hit the C whilst upright - No
    • However, the C didn't have chance to stand up before being smashed.
    • Less than a second between being onside and prepared to tackle and then adapting to change before the hit!
      • What do we allow for a defender to adjust in terms of committed to the tackle?
      • I would offer a similar time, less than a second, for open play or even second tackler coming into allow for first tackle and change of height.
    • Does continuing make it reckless?
      • Not if being committed within 1 second is considered acceptable.
    • Was there intent
      • Apparently the D had stated that "I'm going to break her"
        • Her hair?
        • Her fingernails?
        • Her desire to win?
        • Her body?
        • There may be more but.
      • 1-3, not interested, nothing to see move on.
      • 4 - I can only interpret this as an intent to injure. Intent is a deliberate act beyond reckless. So we come back to the judges use of words that I find baffling and some others do not:
        • 58 (vii):
          • -"...looking for an opportunity to get her revenge..." what was the mode of revenge? Was this explored, maybe it was to break her finger nails!
          • "....the red mist had metaphorically descended over the Defendant's eyes...." - likely not finger nails, hair or spirit then!
        • 58 (viii)
          • "...launched herself at the Claimant..."
        • 58 (ix)
          • "....intent only on exacting revenge..."
          • "....drove the Claimant backwards and, importantly, downwards using her full weight and strength to crush the Claimant in a manoeuvre which was obviously dangerous and liable to cause injury..... "
So building this back up:
  • The D wanted (had proclaimed an intent) to "break her".
  • We are not giving any leeway for the timing, <1 second, even though this might support recklessness.
  • As it was 'obviously dangerous' she knew the tackle was likely to cause injury.
  • Her intent had been met.
  • She'd broken the C.
And this is where the expert witness was tied in knots, and I feel the judge, by the Defence Counsel who was proficient, had plenty of time and had thought through the case, had read the D's expert witness' statement and had a plan to undermine it. To convince the judge that it was more likely than not!

It's why KCs are paid lots of money and the UK legal system is not about justice but about who can afford the most proficient and compelling counsel.

Callum Clark however was, in my mind, quite different and I was extremely surprised that didn't trouble the court, I'll leave you to investigate and consider that yourselves.
 
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