It is an accepted fact that a school owes their pupils a duty to take reasonable care of their safety.
This article is taken from February's public matters newsletter. Click here to view more articles from this issue.
It is an accepted fact that a school owes their pupils a duty to take reasonable care of their safety. The term in loco parentis is often used in relation to that duty suggesting the care to be provided is akin to that of a parent. However in the case of Pook v Rossall School (2018), which concerned a pupil slipping over whilst running to a sports lesson, the judge held that:
“the duty goes beyond that of a parent at home with responsibility for the care of his or her family. There are enhanced duties arising from the fact that the ratio of carer to vulnerable person will be greater (a teacher might have responsibility for a class of 30 pupils) and there are duties arising from the different environment of a school or hospital, the equipment that is used and the fact that, in schools particularly, the children are interacting with other children who might act unpredictably and, sometimes, dangerously.”
That being said, the court concluded that the duty of a school to its pupils does not require the school to reduce risk to the lowest level reasonably practicable. There are some circumstances which call for a measure of discretion and judgement on the part of the teachers as to whether it is appropriate to allow a pupil to run a risk. For example, the risk of injury whilst playing sport is undoubtedly higher, but the health benefits, social interaction and confidence that playing sports can provide are thought to outweigh the risk of usually rather minor injury.
However, what if the risk involved a potentially more serious outcome than a bruised knee or sprain? What if the outcome was the development of dementia in later life? Would that still be worth the risk? A report by experts from the University of Glasgow looking at deaths caused by neurodegenerative disease in former professional footballers in Scotland found that whilst deaths from causes such as heart disease and lung cancer were lower amongst footballers when compared to the general public, death from neurodegenerative disease was three and a half times more likely for professional footballers.
As a result of this report, and in news that was covered widely in the media, the Scottish Football Association are to publish new guidelines which are likely to include a ban on heading footballs in training for the under 12s. Some sources consider the guidelines may also limit heading in matches and in training for higher age groups.
The view of the general public to this news makes for interesting reading. Comments on coverage of the story on the BBC News website suggest a common view that this is ‘health and safety gone mad’. Some suggest they used to head the ball as a child and have not experienced complications, that this is a typical response for the ‘snowflake generation’, and that it is unnecessary as footballs are now lighter than those used by previous generations.
The report did not identify the cause of the increased instance of death from neurodegenerative disease but Dr John MacLean, the Scottish FA’s doctor who was part of the team who wrote the report, believes the proposed restriction is common sense. He considers the likely cause of such a significantly greater number of such deaths to be due to head injuries and that they cannot afford to wait for the evidence on heading without taking action. He believes sensible pragmatic steps need to be taken, and trying to reduce the overall number of times young players head the ball, which is more common in training than in matches, would be such a step.
The English FA has launched a research taskforce to consider potential changes to the coaching and training of heading in England with a view to decreasing the overall exposure to heading the ball. This will include exploring the introduction of limits on heading in training across all levels of football, from full-time professionals to children. Whilst that research is ongoing, the FA is set to launch new coaching guidelines proposing a restriction on the amount of heading of the ball for under 18s in training sessions. The guidelines have yet to be finalised yet, but do not entirely ban heading in the absence of evidence of a direct link between heading the ball and neurodegenerative diseases.
In the United States, children aged 10 and under are already banned from heading and there is a restriction on heading for children aged between 11 and 13. Currently there is no similar ban in any European country. If implemented as proposed, the Scottish FA restrictions will be the first in Europe. The US restrictions were implemented following a claim by the parents of a number of junior football players against the United States Soccer Federation (USSF). As a result the USSF agreed to change its safety restrictions. Litigation over alleged sport induced brain injuries is nothing new in the US where class actions have been brought by players from the NFL (American Football), NHL (ice hockey), National Collegiate Athletics Association and WWE wrestling to recover damages arising from brain injuries allegedly caused while playing. Could we see a similar situation in England and what should schools and LEAs be considering in light of this news?
In brief, where it can be proven that blows to the head have resulted in a foreseeable brain injury, then a range of potential claims could follow. A claim could potentially be brought against a school for failing to take reasonable steps to eliminate or reduce the risk of harm. Currently, there is no direct evidential proof that repeatedly heading a football causes or significantly increases the chances of developing a neurodegenerative disease. However, this report, combined with other well publicised incidents, such as the inquest into the death of the former professional footballer Jeff Astle which recorded his cause of death as dementia brought on by repeatedly heading a football throughout his career, puts schools on notice of the potential for this aspect of football to result in significant harm to participants. This is a potential risk which needs to be assessed by schools, and in the event a risk is identified, consideration given to whether measures should be put in place to address the risk. Such measures could include education on the risks faced and best techniques to avoid injury, reducing the risk by limiting exposure to heading the ball or remove the risk entirely by banning heading. It is likely that the measures required will vary dependent upon age, for example, education as to technique is unlikely to be effective for very young children who may lack the physical control and ability to put such techniques into effect. The risk assessment and any control measures should be reviewed as and when more evidence becomes available and in light of any guidance issued by the FA. Whatever steps are taken, the school and LEA needs to be confident that such steps adequately deal with the risk. As has been shown in the US, claimants are not just professional sports players or even adults, as claims have been made by junior football participants. Litigation against schools on this issue is therefore a possibility.