School sport

With the new rugby season under way, many sports teachers are expressing concern over exposure to litigation from accidents on the field. By David Collard

Sport and the law rarely make happy companions, particularly when a devastating injury occurs. The courts have had to grapple with how the law of negligence should be applied to sporting cases, particularly for contact sports, played at a fast pace by skilled individuals.

Safety first
Previous cases have been determined on the basis of whether the defendant had a disregard for the claimant’s safety, with a reckless tackle, for example. Nowadays, however, rugby litigation has tended to centre on the responsibilities of the referee rather than the players. Despite this, recent cases have confirmed that the threshold of liability remains high.

The rugby injury statistics reveal that the most serious accidents occur at amateur level where players are less skilful then their professional counterparts. As far as the law is concerned, however, the same standards apply.

The decision in Smolden v Whitworth and Nolan (1996) established, for the first time, that the referee had a duty of care to protect the players. Mr Smolden was severely injured when the scrum collapsed during a game between two junior colts’ sides. The Court of Appeal found that the referee was in breach of his duty of care to the players. At the same time, the court emphasised that the case should not be seen as setting a precedent and that it was relevant that this was a colt’s game. This last point is relevant to schools.

Duty of care
The referee’s duty is to control a game to ensure that players are not exposed to unnecessary risk of injury, but the court emphasised that the threshold of liability is high, and will not easily be crossed.

This decision was reinforced in Vowles v Evans (2003), the first case in which the courts confirmed that a referee had a duty of care towards the players in an adult game. The court stated that the referee had been in breach of his duty in failing to enquire whether there was anybody suitably trained or experienced to play as a replacement in the front row. The referee had abdicated his responsibility by leaving it to the home side to decide whether the scrums should be uncontested.

Despite these high profile cases, claims against referees remain extremely difficult to prove and, with the appropriate evidence, can be successfully defended.

Keep your documents
In the case of Allport v Wilbraham (Dec 2003), the judge found in favour of the referee. It was alleged that the referee did not call the scrum in accordance with the sequence of crouch, pause, engage and that this caused a mistimed engagement (not a collapsed scrum), resulting in injury to the plaintiff.

In reaching his decision, the judge stated the importance of contemporaneous documents, such as the referee’s match report and the score cards assessing the referee’s ability to manage the game, and, in particular, the scrum. This means that, when seeking to defend a claim, these documents are of crucial importance and systems should be in place to ensure that any match reports, score cards and team sheets are retained.

While successful claims may be rare, it is sensible to explore alternative ways of compensating those who have been injured as a result of rugby and other sporting accidents. Personal accident insurance for pupils is widely used by independent schools, although a significant number do not offer this protection.

David Collard is the marketing manager for HSBC Insurance Brokers specialist education division. David can be contacted on enquiries.school@hsbc.com or through www.schools.hsbc.com 

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