***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!***
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?
- 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?
- 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.