The general camaraderie and bonhomie has lately been shattered by the arrest of former Springbok Prop Robbie Kempson on suspicion of assault. Kempson spent 12 hours in Police Custody before being released, initially on bail. The matter was being reviewed by a prosecutor, but it has subsequently been announced that Kempson will not face charges.
Kempson is alleged to have charged into the back of USA Fly Half Leif Gibson (34). The USA say that this was an off the ball incident. Kempson denies this and asserts that it was part and parcel of a contact sport. Gibson was removed on a stretcher with a neck brace.
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Kempson was not sanctioned during the game and has not been cited since.
Kempson does have 'previous'. In 2003 he was cited for a late and dangerous high tackle in an international v Australia which caused a 'spinal concussion' and banned for 4 weeks. Kempson appeared in 37 tests between 1998 and 2003.
Why did the Police become involved?
The american team and the player complained to the Police. The coach in fact rather dramatically suggested publicly that Gibson might not play again as a result of a significant spinal injury. Gibson was in fact up and walking at the time, albeit in extreme discomfort.
The prosecutor decided that there was nothing which took this situation out of the ordinary context of a contact sport.
In the UK criminal prosecutions are reserved for those situations where the 'conduct is sufficiently grave to be properly categorised as criminal'. Relevant factors according to Woolf LJ in Barnes might include, inter alia, the sport and level of the participants, the nature of the act, the degree of force used, the resultant injury or consequent risk of injury, and the intention of the perpetrator. Prosecutions are rare. Nonetheless those engaging in off the ball incidents are flirting with a danger which goes beyond the wrath of the governing body. I make no judgement about Kempson, I have not seen any replays or statements.
As we have seen in a number of recent cases, interested 3rd parties, with whatever agenda, can complain and involve the Police. Even if charges do not result, it can be a very uncomfortable place for the accused player whether guilty or not.
Postscript 16.11.12
I am urged by comments to consider the legal liability of such as Kempson if in fact the conduct alleged ie an assault off the ball having nothing to do with the play were to be established. Criminal liability is dealt with above. Criminal proceedings are extremely rare.
Civil liability might be established.
Kempson might, have committed the tort of battery (trespass to the person). This is difficult to prove, requiring an intent to make contact with the victim. Injury would not have to be foreseeable or intended.
Most actions are in negligence. The player owes a duty of car to his fellow participant. He must take reasonable care in all the circumstances to avoid causing injury to another player. The rules, conventions and playing abilities of those participating are relevant factors in assessing what is reasonable. Nonetheless the test itself does not change whatever the playing abilities of the relevant parties. A momentary mistake or judgement error will not ordinarily found liability. Reckless conduct almost certainly will. The Paul Elliott v Dean Saunders case is perhaps the most well known. Elliott suffered a career ending knee injury as a consequence of a tackle with Dean Saunders. The trial judge found that Saunders had not acted dangerously or recklessly and accepted Saunders case that the contact and consequent injury was an accident as Saunders himself tried to avoid injuring himself.
(Acknowledgement to Sports Law 4th Edition Gardiner & Others 2012)
In this case the actions of the Sth African player were deliberate and were done to cause grevious bodily hard to the innocent USA player, who had to be air lifted from Bermuda to the USA where he is currently in medical hands and will most likely never be able to participate in any active or physical activity, in fact any sudden movement or jolt could cause him to be paralised for life as the vertibray is pushing hard against his spinal nerve. The Sth African player can only be describes as a THUG and should be tried accordingly in a court of law and if found guilty he should be given the maximun Bermuda jail sentence.
ReplyDeleteThat's a little strong, don't you think?
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