Schools, Sport & Prescriptive Rules – Be careful what you wish for
By Joseph Napier
This article focuses principally on the recent decision of Murray v Rainey Endowed School but may be of interest to those involved in Sports Law, GAA sports and volunteering/coaching within a school, club or educational setting.
Like it or loath it the doctrine of Judicial Precedent has, for decades, influenced the way business, industry, and society behaves. Even when far removed from the sometimes complex legal spectrums that the modern world flits in an out of, the general public all have a concern about ‘setting precedent’. There is an infinite understanding that, once approved, criticised or condoned, similar events and occurrences will succeed or flounder on well-worn paths.
Consequently, often quietly and unnoticed, the impact of decisions and written Judgements of the High Court can pervade into seemingly remote facets of modern life. It was with an interest in sports coaching at club and schools’ level that I considered the recent decision of Mr Justice Stephens in Megan Murray v Rainey Endowed School.
The plaintiff, a 15 year old school girl, sustained serious dental injuries when struck with a hockey stick whilst representing her school. The plaintiff was not wearing a mouth guard. The medical evidence established that, had she been wearing such a guard, the injuries to her teeth would have been prevented. The plaintiff sued her school, alleging that;
- Wearing the guard should have been mandatory;
- She had not been sufficiently warned about the risks of not wearing one; and
- Her parents had not been sufficiently warned about the risks of not wearing a mouth guard and, had they been so warned, they would have ensured that she did wear one.
Ultimately, the plaintiff’s case failed. Mr Justice Stephens determined that in keeping with the governing body, the International Hockey Federation’s rules, the school had ‘recommended’ the use of a guard within its uniform policy. Mr Justice Stephens also found that staff had regularly encouraged the use of the guards and emphasised the dangers of not wearing them. Underpinning his decision to dismiss the case, the Judge took into account the plaintiff’s age and clearly determined that at 15 a pupil can generally be expected to have an understanding of the risks associated with not using a guard.
Whilst arguably a result for ‘common sense’ that many neutrals will welcome, I fear that the Judge’s rationale, when considered in totality, will create a significant problem for many schools and sports clubs. The evidence before the Court was that most National Governing Bodies involved in contact sports recommend that players wear mouth guards.
However, the Gaelic Athletic Association, which governs Gaelic Football, determined at its Congress in 2013 that, as from the 1st January 2014, all age grades must wear a mouth guard. Additional guidance stipulated that ‘all age grades’ meant just that – right down to U-6 level. The directive covered training as well as games. Any sports coach will have their tales of woe about the masses of children, the lack of volunteers, the speed of departing parents, and the Child Protection issues, as they struggle to co-ordinate a coaching session for young children. It is perhaps the most unenviable task of the week, never mind the weekend. Added to the list of tying boot laces, supplying water, tending broken nails, chasing off marauding insects, is the need to try and introduce and enforce the use of mouth guards. The last thing the wary, nervous 7 year old needed was to have a lump of plastic forced onto this teeth. There was no prospect of an attentive, receptive and eager participant from that point on. Mouth-guards are uncomfortable, unwieldy and unpopular among young children. It is a struggle to find any that will comfortably fit an 8/9 year old.
In my experience the GAA’s directive is largely ignored at juvenile level, even by the Association’s own referees, particularly at the younger age groups where many clubs’ principal focus is simply ensuring local children have an outlet for physical activity, fun and community foundation. Where does the recent decision leave schools and by extrapolation, clubs?
One proposition before the High Court was that a publication by the Association for Physical Education which ‘highly recommended’ mouth guard use should be interpreted as meaning ‘mandatory’. Mr Justice Stephens rejected that argument and the ‘recommended v mandatory’ aspect was obviously a key factor in his deliberations. As the Hockey Federation only recommended use then the Judge was entitled to apply the other liability tests, those of applicable warnings and information. If the plaintiff had damaged her teeth playing Gaelic Football rather than Hockey, she would have succeeded on the failure to enforce point and, while perhaps at risk of a reduction for contributory negligence because of her age, may well have succeeded in establishing her case for damages.
The implications are significant. It will be very difficult for any school providing Gaelic Football as part of its PE curriculum to successfully defend a claim for dental injuries when no mouth-guard is worn. A school teacher has a duty to take reasonable care of his pupils. As against the directive of the governing body it would be virtually impossible to condone the non-wearing of a mouth-guard. The younger the child, the more difficult any defence, that the pupil had been informed about risks and warned that a guard had to be worn, would be. Ultimately, the teacher tasked with trying to maximise participation in sport, which we know is so beneficial to the mental wellbeing of our young people, is burdened with having to implement, enforce and supervise the impracticalities of a mandatory directive from the governing body.
Further afield, GAA clubs admirably providing sporting facilities throughout our communities would be burdened with the same requirements. The legal duty remains the same – they must take reasonable care in the circumstances. The only difference is that the coach is a volunteer. The GAA’s own insurance scheme will not compensate a player who receives a dental injury unless he/she was wearing a mouth guard. In an ever litigious world it is only a matter of time before the player (or his/her parents), debarred from the association’s own compensation scheme, sue their club in order to extract compensation. All sports clubs would be well advised to review their policies and make sure that their public liability insurance covers such eventualities.
In many ways those scenarios are black and white. One wonders, in an age when local sporting clubs are being called upon to voluntarily fulfil coaching and games shortfalls within local primary schools, brought about by funding cut-backs, where responsibility will fall. Will it fall on the school or the club insurance? Will it make a difference if the games are part of PE or part of an after schools club? Exercise and sport are so important for the development of life skills within our youth. In an era of increasing demands and pressures on young people the stability, ownership and confidence generated within a sporting environment should not be overlooked. It would be an irony, and a pity, if the rules of the GAA in this regard in any way diluted a school or clubs ability to effectively provide an outlet for participation in this community based and voluntary sporting tradition.
Our children and young people deserve the application and benefits of our collective experiences. Statistics show that dental injuries are an inherent risk of contact sports and efforts are duly required to minimise and mitigate against the risk. The introduction of a rule that exposes schools and clubs to civil liability is unlikely to improve the provision of PE at schools, school-club links or the participation of volunteers within a club setting. If the GAA had adopted the much more flexible guidance of other governing bodies surely they would have provided the necessary balance between risk, cost and participation that would have encouraged sport rather than curtailed it. Mr Justice Stephens certainly suggests they have made a ‘hurl’ for their own back.
I certainly wouldn’t want to discourage the volunteering and schools-club links I have praised within this article. Being forearmed is to be forewarned. Hopefully, any risk will be an insured risk but it will be prudent to check the small print.
This is a personal opinion piece only, and has not been written with a view to providing legal advice. Should you require advice on any matter or issue arising, please contact firstname.lastname@example.org