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Players of contact sports such as rugby run the risk of suffering physical damage, but when the injured players tak...
Players of contact sports such as rugby run the risk of suffering physical damage, but when the injured players take the game to court the rules are open to change, says Charles Ward

The rising number of claims for school sports injuries poses a dilemma both for local education departments and their insurers.

In August this year, 21-year-old Ramsey Elshafey won a£100,000 settlement from Kings School, Macclesfield. In 1997, his own school team had played rugby against Kings School. During the match he suffered neck and ligament damage after being lifted in the air and dropped on his head.

Mr Elshafey claimed these injuries affected his examination grades and prevented him from becoming a dentist and left him unable to play semi-professional rugby. The settlement followed an earlier High Court decision holding the school liable for the negligent tackle.

It is estimated up to 36,000 pupils each year are injured playing rugby and that these amount to almost 50% of the claims made on school insurance. Up to 520,000 children go to hospital each year after an accident in school time, a third of which happen on sports fields. It is small wonder school insurance premiums have rocketed by 20% in one year.

Potential liability for sports injuries does not only impact on schools and local education departments -individual teachers, school governors and other pupils may also be affected. In these circumstances, liability arises out of the general law of negligence and the legal principles developed from over 50 years of case law.

Several legal issues arise:

-- What legal yardstick do judges use to determine someone's liability for sports injury? Does the mere fact someone has been shown the yellow card for a foul tackle mean they will be liable for any resulting injuries?

-- What is the position of individual teachers who have to supervise or referee a contact sport?

-- What can local education departments, school governors and teaching staff do to minimise their exposure to risk?

The Court of Appeal decision in Caldwell v Maguire and Fitzgerald (27 June 2001) provides reassurance that a momentary error of judgment in the heat of the moment will not normally provide grounds for a damages claim even if serious injury results.

The claimant Peter Caldwell and the two defendants Adrian Maguire and Nick Fitzgerald were all professional jockeys. On 30 September 1994, all three rode in a two-mile novice hurdle race at Hexham. Having jumped the second to last hurdle, the three riders, and a fourth riding Royal Citizen, approached a lefthand bend.

The situation became congested and Royal Citizen shied away causing one of the defendants to come off his horse (suffering minor injuries), followed by the claimant who fell to the ground sustaining far more serious injury. Following a stewards inquiry, both defendants were found guilty of careless riding as they had left insufficient room for Royal Citizen to come round the inside rail. They were each suspended for threedays.

The claimant later sued the two defendants for his injuries. The trial judge rejected the claim, concluding statistical evidence showed careless riding to be a fairly common offence - with 129 separate cases during 1999. From a review of previous case law the judge distilled five legal principles:

-- Each contestant in a lawful sporting contest owes a duty of care to each and all other contestants

-- That duty is to exercise during the contest all care objectively reasonable in the circumstances to avoid injury to fellow contestants

-- The prevailing circumstances include everything relevant to the contest and includes its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant

-- Given the nature of such prevailing circumstances

the threshold for liability is inevitably high and proof

of negligence will not arise merely from proof of a momentary lapse in skill (and thus care) when subject to the stresses of a sporting activity

-- In practice it may be difficult to prove any breach of

this duty of care without proof of conduct amounting almost to a reckless disregard for a fellow contestant's safety.

Applying these facts to the law, the judge concluded that while each defendant was guilty of momentary lapses of care at the time in question, this lack of care, taking into account the nature of a horse race, was not

of sufficient magnitude to surmount the liability threshold. The Court of Appeal supported the trial

judge's approach.

Though most sports injury cases concern negligent supervision, refereeing or participation, occupiers' liability provides another area of risk. The Court of Appeal considered this issue in Comer v The Governors of St Patricks RC Primary School (13 November 1997).

Ryan Comer, a parent of one of the school's pupils, suffered long-term damage to his wrists and elbows after colliding with a wall. He had been participating in the fathers' race at the School Sports Day. It was an informal event and no one was quite sure of the finishing line. Mr Comer regarded the finishing line as being a painted line about five foot in front of the wall. Another participant thought the finish was the wall itself.

In any event, Mr Comer was the first father to cross the painted line but he could not stop before forcefully colliding with the wall. He sued the school for negligence in the way the race was organised.

In support of his case, Mr Comer called expert evidence demonstrating that a properly organised athletics club meeting or competition required a substantially long run out, at the end of a sprinting race. The trial judge would have accepted the expert's opinion that the arrangement was unsafe if it had been a children's race. But the plaintiff was a sensible man in his 30s who was familiar with the layout of the playground and the position of the wall. As this was no more than a fun race, the school was entitled to expect him and other participating parents to look after themselves and adjust their actions to the particular terrain and circumstances in which they found themselves.

The encroachment of the compensation culture onto the school playing field is an issue which must be addressed both nationally and at a local level. How much longer can the compulsory 'games lesson' remain part of the weekly school timetable? What additional training should be given to school staff who may be called upon to supervise sporting fixtures? Can the problem be adequately tackled through personal insurance?

In Vann Oppen v Clerk to the Bedford Charity Trustees (1989), the Court of Appeal ruled a school was under no general duty to inform a pupil's parents of the risk of injury while playing a contact sport or to advise the parents of the need to take out personal accident insurance or take out such insurance itself for the pupil. But insistence on such personal insurance before allowing a pupil to take part in a contact sport might provide the perfect response to this type of claim and is something all school governors should consider.

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