Sporting chance

In Mountford v Newlands School and Another [2007] EWCA Civ 21, the Court of Appeal discussed the liability of a school for an injury to a pupil in an inter-school 7-a-side under-15 rugby game. There are certain factors that need to be considered when making a claim in this area.

The facts of Mountford

The claimant was a 14 year old pupil who was playing on his school team against another local school in a 7-a-side under-15 rugby game. During the course of the game, the claimant was lawfully tackled, breaking his elbow in the process.

While this in itself is an acceptable risk of the sport, the case uncovered new groundbecause R (the boy who tackled the claimant) was well over 15 years old, breaching the Junior Rugby Guidelines of the English Rugby Football School's Union (EFRSU).

The judge at first instance held that the negligence was not in R's tackling action, but rather a failure of S (the master in charge of the Newlands' team) to apply, or justify a departure from, the EFRSU age rule in selecting R to play in the school team.

The school was therefore vicariously liable for S's actions. Although the school appealed against this finding, the Court of Appeal unanimously rejected this and upheld the original verdict.

Interestingly, although there was an obvious physical disparity between the two players (M was 5ft 2in and 7 stone, while R was 5ft 11in and 13-14 stone), both the High Court and Court of Appeal held that the disparity would have been acceptable if both players had been of the same age.

This conclusion suggests that if R had been under-15 as well, there would have been no breach of any rules, and therefore no liability.

Interestingly, this conclusion effectively acquits S (in his capacity as referee) of any negligence in the handling of the game and for allowing the match to take place notwithstanding the physical mismatch between the players. If the tackle would have been lawful if both players were the same age. Given that S had no knowledge that R was over age, there could have been no negligence in allowing them to play together.

Although the Court of Appeal decided Mountford along traditional negligence principles, the case does have some practical implications for the high street solicitor.

Consider the type of sporting activity being played

The Court in Mountford accepted that there are inherent risks in each sport. If a sporting activity is played according to officially sanctioned rules, then it will be difficult to argue that an injury is anything but an acceptable risk of participation. Note that in Mountford, the older pupil was not negligent for performing a legitimate tackle, even though injury resulted.

Is the activity a training session/ lesson, or a competitive fixture?

• Although many see the British Association of Advisers and Lecturers in Physical Education (BAALPE ) Safe Practice in Physical Education book as the definitive authority on school sport, MacDonald QC suggested (reproduced at paragraph 2, CA judgment) that the BAALPE publication relied upon by the claimant was only a training manual, not a match playing manual.

Effectively these comments suggest that while the BAALPE guide is relevant to all areas of school sport, its real value lies in lessons and drills rather than competitive fixtures or events. If any school is playing competitive fixtures, it is essential that they have obtained and followed the specific rules issued by the appropriate governing body, in addition to any BAALPE/ Association for Physical Education (AfPE) guidance.

• The risks appropriate to the event will vary according to the purposes of the activity (Comer v Governors of St Patricks RC Primary school (Court of Appeal, 13 November 1997).

Are the ages of the pupils appropriate for the activity?

• It was material in Mountford that one of the pupils in the team was over 15 years old, but playing in an under-15 team. It is therefore important to check the composition of each team and the birthdates of the players.
• While the court accepted that there could be valid reasons for players to move between categories, any movement that does occur must be accompanied by an appropriate risk assessment from the school. Ignorance is not a defence.
• In general practice though, it will be more common that players move up an age group rather than down.
• The rules on the movement of pupils are specific to each sport, football for example is organised by two year age bandings with movement (up or down) prohibited between age groups.
• It is also worth considering that certain full contact activities are unsuitable for immature pre-pubescent pupils. Consider whether modified versions of the games such as Tag Rugby or High five Netball should have been played instead.

How is the activity being supervised?

Although the referee and officials in Mountford were not negligent for their conduct during the match, Newlands School was held vicariously liable for allowing an ineligible pupil to play in the game. The planning and preparation phases before the activity are therefore just as important as the match itself:

• Consider the actual equipment used in the activity. Are pupils wearing the correct kit? Has the apparatus been serviced? Are there an appropriate number of mats?
• Is there adequate first aid provision?
• What are the qualifications of the supervisors and are these appropriate for the level of activity being played?
• What is the ratio of students to supervisors?