A recent report in the British Medical Journal suggested that scrummages in rugby should be made uncontested - Stephen Winterton and Scott Taylor ask how this would affect the sport
A recent article in the British Medical Journal received a good deal of coverage in the sporting and mainstream press. James Bourke, orthopaedic surgeon at Queen's Medical Centre in Nottingham and honorary medical officer to Nottingham Rugby Club, suggested that the set scrummage in rugby union be 'de-powered' or made uncontested.
This suggestion is undoubtedly controversial. Some commentators argue that banning contested scrums would ruin rugby union, causing players to leave the game and spectator interest to plummet.
To assess Mr Bourke's proposition from a legal standpoint, the incidence of such injuries must first be considered. During 30 years with his club, Mr Bourke said he had seen six spinal injures arising from the scrummage. Assuming an attendance of 25 games per season, Mr Bourke would have watched more than 1000 hours of rugby.
His experience suggests that a serious spinal injury occurred every 166 playing hours or so. In fact, there have been several wider-reaching studies that suggest this incidence is on the high side. In a study for the Scottish Rugby Union of the 1997-1998 season, only two instances of spinal cord injury were noted in more than 23,400 playing hours.
So is this an acceptable risk? Established case law suggests that people accept those risks associated with sports, provided that injury sustained at the hands of another is sustained within the laws of the game.
Consider the Court of Appeal's decision in R v Barnes (2004), which found that the prosecution of those who cause injury through sport had to be reserved for those situations where the conduct was sufficiently grave to be categorised as criminal. This is a subjective test and one to be applied with a careful eye to the particular circumstances of each incident.
Duty of care
In recent years, referees have become increasingly vigilant where scrummages are concerned. There is now provision for uncontested scrummages in games where one of the teams is unable to field a full front row with all the players having experience in those positions. Referees must also guard against the repeated collapse of scrummages, where both front rows push against each other to force the opposing team towards the ground.
It is this factor that led to the two cases of Smoldon, and Whitworth and Nolan (1996) and, more recently, Vowles v Welsh Rugby Union (2003).
Benjamin Smoldon was a 17-year-old front row player at the time of the incident that led to his injury. He sustained a catastrophic spinal injury in a game where the referee had repeatedly allowed the scrummages to collapse. The improper management of this area of the game led to the spinal injury, which was a foreseeable consequence of a collapsed scrummage.
In Vowles, one of the specialist props for Llanharan was injured and had to leave the field. His team, with whom Richard Vowles was the hooker, elected to replace the prop with an insufficiently experienced player - in this case a flanker. The referee did not take steps to ensure that the replacement had experience of playing in this position and it was this omission that was key to the case. The scrummage collapsed close to the end of the game, due to the inexperience of the replacement, and led to a serious spinal injury to Mr Vowles.
In these cases, the referees faced criticism for improper handling of the scrummage. It was held that the referees of these matches owed a duty of care to all players to take reasonable care for their safety when playing. In particular, this involved careful management of the scrummage.
It is much more difficult to obtain a finding against individual players or coaches for negligence in playing or coaching; however, this position may change. From August this year, the Rugby Football Union in England will be taking all but the most senior clubs' insurance in-house. This will be administered centrally and will provide compulsory insurance cover for injuries. It also includes employers' and public liability cover - something that many clubs may have lacked in the past.
Health and Safety
It has also been suggested that the Health and Safety at Work Act 1974 and the associated regulations should govern the relationship between the professional player and his club. So is it right that the club, or employer, should be obliged to carry out appropriate risk assessments and provide training?
For example, the Workplace (HS&W) Regulations 1992 oblige the employer to provide a safe place of work. Obviously the regulations do not specifically provide for such an unusual workplace as the rugby pitch and it is difficult to see how they can be meaningfully relied upon when it is the specific aim of players to make the area as 'unsafe' as possible for the opposing team with hard tackling and powerful scrummaging.
In order to become a professional player, an individual must have proved himself at a variety of lower levels. He will have received substantial coaching throughout his playing career, particularly if playing in the front row. He will have been physically assessed by his employer club and will ordinarily undergo regular fitness tests as part of his professional contract. The player must already be familiar with the risks and safety strategies to have reached that level in the first place. There is little to be gained in a professional environment from the player attending regular courses warning of the dangers of scrummaging or dangerous tackling and, arguably, it would be virtually impossible to apply the Act to the professional sports scenario.
The fact is that some occupations and sporting pursuits are dangerous. That will always be the case and is, at least in some small way, what draws some people to get involved in them. When effective training is coupled with the supervision of a properly qualified and trained referee, the danger is minimal - as can be seen from the various statistics on the subject. Obviously, where appropriate training and supervision are absent, accidents may happen and civil actions may follow.
Stephen Winterton is a prop forward with over 25 years' experience and Scott Taylor is a back row forward and chairman of Writtle Wanderers Rugby Football Club - both are associates with Barlow Lyde and Gilbert.
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