‘On a cold wintery Saturday on 21 February 2010…’ (so begins Lady Scott's opinion) Mr Cox attended a rugby training course at the grounds of Panmure Rugby Club in Dundee. The training was under way and Mr Cox was in possession of the ball. He sidestepped to avoid some players rushing towards him. As he did so he heard a loud crack and he fell to the ground. Having hobbled off the pitch in pain he later found out that he had fractured his left foot.

The parties agreed on many points including the relevant law, which was based on vicarious liability. The defenders would be found vicariously liable for the negligence of the course leader. Whether liability attached would depend on a narrow question of fact – were the underfoot conditions suitable for play or did the condition of the ground present an obvious risk of injury?

Four other members of the rugby club gave evidence for the pursuer, as did an expert in rugby training risk assessments. There was conflicting evidence on whether the ground would 'take a stud'. This was advanced by the rugby expert as the acid test in determining whether or not ground was safe. Could studs penetrate the ground such that the players could gain traction? Ultimately Lady Scott accepted that the ground used, at least in part, was too hard or frozen, would not 'take a stud' and was uneven or rutted. She found the rugby club liable to pay Mr Cox £30,000 damages plus interest.

This was not an employer’s liability case – where risk assessments are required by statute - but it emphasizes the importance the courts place on carrying out suitable risk assessments even at common law. It should serve as a reminder of the health and safety duties incumbent on clubs. What should they do? They should:-

(i) before training or match play, carry out a pitch inspection;

(ii) make up a list of hazards to look out for on a pitch inspection - e.g. ice, puddles, litter, etc.;

(ii) take into account what footwear will be used by players when considering if the pitch is safe - studs in this instance;

(iii) keep a record of each inspection - when it was carried out, by whom and any comments.

The concept could conceivably extend to professional sport. A Champions League match between Galatasaray and Real Madrid was abandoned in December because of heavy snow - to protect the players’ wellbeing. In contrast, at the Australian Open tennis the chief medical officer was forced to defend allowing play to continue during heat in excess of 40 degrees centigrade, stating that it was medically safe because "we evolved on the high plains of Africa chasing antelope for eight hours under these conditions." What would a court make of that evidence?