Rugby's ban on head-high tackles will benefit smaller players

Years ago, make that decades ago, our law professor Geoffrey Palmer told the class that “the avenues of torts are never closed”.

Palmer went on to become Prime Minister of New Zealand and his aphorism stayed with me over the years.

His point was that litigation lawyers are agile in convincing former litigation lawyers who become judges that there are many new wrongs (torts) that need a legal redress.

And so over the years we have seen an explosion of rights that torts lawyers feel impelled to bring up before the courts or through the multitudinous government-sponsored commissions. These rights have been virtually universally endorsed by judges willing to make new laws rather than waiting for governments to actually create them.

All this is by way of explaining why World Rugby was correct in bringing in two new laws “to address reckless and accidental tackles”.

The point of the laws is to outlaw high tackles, whether intentional or accidental. The hope is that with these new laws (or as some suggest tougher interpretations of the old laws) in place, rugby might avoid a catastrophe of numerous court battles over compensation payouts to injured players.

Like all contact sports, rugby has always been sitting on a legal minefield regarding the implications of reckless and even accidental injuries.

This report in The New Zealander in 1877 gives a sense of how tough rugby can appear to those looking at the game with unsympathetic eyes:

Football is becoming such a dangerous pastime that something should be done to stop it. There is nothing artistic, scientific, or graceful in the game, and judging by the frequency of casualties connected with it, it can hardly be said to be a healthy pursuit. Bull-baiting and cock-fighting have more to commend them as recreations than the rough-and-tumble hoodlum amusement yclept (called) football which our youths seem to take much delight in.

The Bulletin in the 1890s expressed the same point of view when it constantly referred to rugby as “the undertaker’s friend”.

Until recently, this intrinsic toughness about the body contact element in rugby was seen as one of its virtues. Rugby was a real man’s sport.

You didn’t eye-gouge or kick someone in the head, those were no-go areas, but for the rest of it basically it was no-holds-barred.

Times have changed though over the last 130 or so years. What was an acceptable risk in the past is no longer acceptable. The New Zealand newspapers, for instance, have been running alarming stories of players in entire teams from the 1960s being struck down by Alzheimer’s disease.

There are cases, too, here in Australia of former Wallabies afflicted in the same way.

These reports have rightly alarmed the rugby community around the world. World Rugby’s new laws are just one response of many to this growing problem.

It is only a matter of time in the current environment of concerns (and rightly so) about concussions suffered by rugby players before the litigation lawyers put together cases or even class actions that have the potential to bankrupt a contact sport like rugby.

A key element in torts law is the notion of ‘foreseeability’. If a dangerous outcome is foreseeable, there can be a liability on the organisation running the sport when something bad happens if its governing authority has not put in place regulations or laws that outlaw the actions liable to lead to the most serious of outcomes.

In rugby, it is entirely foreseeable that if players can legally tackle around the shoulders that these tackles will, in the constant clash and smash of bodies, result in tackles around the neck and head. It is also foreseeable that these head tackles and collisions will lead to concussions and very occasionally something worse.

World Rugby is right, therefore, to force tackles to be lowered to at least under the shoulders and closer to the waist.

Bill Pulver was correct with his endorsement of the new laws, saying, “The welfare of all rugby players – young and old, male and female – is the No. 1 priority for us in Australian rugby, and along with World Rugby we are dedicated to implementing best-practice safety measures across all levels of our game.

“We wholeheartedly endorse World Rugby’s recent endorsement of new law applications that make it clear head and neck safety is a fundamental premise of our game.”

Last year, Dr Ian Murphy, New Zealand Rugby’s medical director, wrote to the New Zealand Listener explaining the official approach to striking a balance between the “rigours of the game” and “making rugby as safe as possible” with the NZRU’s 15-year-old injury prevention program:

We have seen the headlines about rising injury rates in rugby. By way of context, 150,000 people play rugby in New Zealand each winter in about 45,000 games. Injury rates fairly reflect the numbers playing what is a contact sport. Far more children are hurt in playgrounds and backyards than on rugby fields. There are increasing statistics related to concussion injuries, but they reflect growing awareness of the injury, which is a good thing.

Like all sports, rugby helps to counter sedentary life-style illnesses, such as obesity and heart disease. We want rugby to continue providing those benefits as it has for generations. We don’t have all the answers, but we are committed to continually improving our safety programmes so that we can give parents, players and fans the confidence they need that the risks are well-managed.

This concept that the risks involved in playing rugby need to be both well-managed and seen to be well-managed is at the heart of the new laws.

The point is that under the new laws it is not foreseeable that head clashes are inevitable. They will happen, just as they do on the playgrounds, but they are not an inevitable consequence of players following the laws of the game.

With these ideas swirling around in my head I watched the Aviva Premiership match between Wasps and Leicester, one of the first major matches under the new laws.

The first head-high tackle came in the 37th minute, with no injury resulting.

But the first player to be injured in the match so badly that he had to leave the field permanently was James Haskell, who made a front-on tackle on a runner in the 11th minute of the match.

Haskell’s injury was part of an unexpected pattern of the tacklers being injured more often than the tackled player that was repeated in most of the other Aviva Premiership matches.

At the end of that round of six matches, The Guardian‘s Paul Rees made the point that the new laws were a step forward in improving the safety aspects of rugby, but there were some unexpected problems with them:

“When two rugby worlds collide, concussion is the outcome. Five players sustained head injuries during the draw between Saracens and Exeter last Saturday, but only one was due to a high/reckless/dangerous tackle. The rest were suffered by the tackler, going low and not getting his head position right.”

Those of a certain – or, more accurately, an uncertain – age like myself shudder when we see modern players go into tackles with their head aimed at the chest of the runner, rather than his back.

In past generations, youngsters were taught that the first principle of tackling is to get their head behind the ball-carrier. When the tackle is completed, the tackler should be on top of the ball runner and not underneath him. Young players were taught this correct tackling method as soon as they started playing.

This simple and safe technique, though, seems to have been given away, replaced with the high, front-on tackle – an invitation to smashed teeth, nose, shoulders and ribs of the tackler rather than the runner.

Moreover, with the tackler going in high to prevent an off-load, there is the likelihood of an arm or elbow smashing into the runner’s head.

In his article, Rees correctly suggests a reason for all of this:

“High challenges, or collisions, are a legacy of rugby league’s influence on union, which grew markedly from the early years of the 2000s. Players who had previously been coached to tackle around the waist or lower were now encouraged to aim higher to prevent the offload.”

There has been any amount of dire predictions from coaches and players in Europe that the new laws will destroy the integrity of the rugby game. Former All Blacks No.10 Nick Evans, with his “I fear for the future of rugby” is the latest Cassandra.

Evans argued that many bigger players might not be able to adjust to the requirement to tackle lower.

My argument is that bigger players have an advantage when they carry the ball. They shouldn’t complain if they might be slightly disadvantaged when they have to tackle smaller players.

The good news is that coaches in Australia and New Zealand are embracing the challenges and the opportunities that the new laws will open up.

In an interview with Fairfax Media, NSW Waratahs defence coach Nathan Gray conceded that the way rugby is played and coached has to be changed significantly:

“In terms of management from a coach’s perspective, you’ve got to prepare a bit more for having 14 guys on the field because it’s going to happen,” Grey told Georgina Robinson.

“They’ve said those accidental things that happen you’re going to get carded for, so you need to prepare that way to have 14 or 13 guys on the field a little bit more. You’ve got to make sure you’re ready for that.”

You can see what Gray is getting at. Initially, at least, even accidental hits to the head are going to be penalised, sometimes with a yellow card. So he is training his players to cope with one or more players sitting out a yellow card send-off.

Tana Umaga, as well as being a successful All Blacks captain, is famous for telling a referee “we aren’t playing tiddly-winks out here” when his side was penalised for some hand-bags at three paces aggro years ago.

After analysing some of the Aviva Premiership matches, Umaga conceded that the changes are necessary. Coaches and players will have to look at their tackling techniques to ensure that they are not penalised out of games:

“Some of our players have just to understand they’ve got to change their tackling technique. They have to get lower so they don’t get up around that area where we don’t know what is going to happen,” the Blues coach told Newstalk ZB radio.

Umaga made the further point that rugby could be a better game once “we get through the bedding down process”.

This is right.

There is going to be more off-loading, with runners not having to worry about having their heads attacked. Someone like Sonny Bill Williams is going to be an even more devastating attacking force under the new laws. Other strong off-loading players will benefit, too.

The return of the grass-clipper tackle will come back. In turn, this will create opportunities to win back the ball at the ensuing ruck.

The two-player combination of an around-the-boots tackler and a jackal snatching for the ball is going to bring up a strong contest for the ruck ball. Attacking sides, in turn, will have to send players into the ruck to stop the poaching.

There will be some problems for referees and tacklers, though, with ball runners lowering their head and shoulders as they go into contact.

There has to be some understanding that if a tackler goes into the tackle aiming at the waist and the runner ducks his head or lowers his body, then a consequent head tackle might be the fault of the runner rather than the tackler.

On balance, however, we should see a resurgence of the smaller, brilliant, twinkled-toed, quick-silver players – more of the Shane Williams and Damien McKenzie types – as their bigger, more ponderous opponents struggle to tackle them legally when they burst past them or run on to the off-loads of bigger players.

More rugby, in other words, and less thugby should come out of the new laws.