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Mountford v Newlands School & Anor, Court of Appeal, 24 January 2007

1 February 2007
The issues

Sports injury – school rugby match – injury to player – sports negligence.

The facts

On 19th February 1997 the Claimant was 14 years old and was a school boy at Shoreham College, Sussex. He was playing an under 15 rugby match against Newlands Manor School. It was a 7 a-side match. He broke his elbow as the result of a tackle.

The tackle was carried out lawfully but by a boy, older than permitted, on the relevant date and considerably bigger than the Claimant but not of a size that, if he had been under 15, ought to have led to him being excluded. It was the Claimant’s case and the Judge’s finding below that the master, who had selected the over 15 year old, was in breach of a duty of care in selecting him by when he was over age and that a breach of duty caused the injury and that the school were vicariously liable.

The school appealed.

The decision

The ERFSU Guidelines for Junior Rugby stated (Regulation 5) that players should not normally be allowed to play other than in their own junior age group. Expert evidence had been called as to the interpretation of these guidelines. The Claimant’s expert’s position was that the Rule was an absolute Rule and that the word “normally” was in practice treated as though it was not there. Since about 1950 or 1955, the Rule had never been interpreted as allowing a school boy player to move down an age group. The Defendant’s position was that Rule 5 was no more than a guideline. Flexibility was envisaged in its application.

The Judge found for the Defendant as regard to the meaning of the Rule. The Judge accepted however the evidence of the Claimant’s expert that departures from the Rule were rare, especially involving “playing down”. The evidence of the selecting master had been that he did not know of the age of the player. The effect of the joint statement of the experts was that if boys were within the correct age bands then the physical size should not preclude the larger boys from playing. It did not follow however, that since a 15 year old might have been of a particular height and of a particular weight, that it was therefore permissible to bring down someone over the age band who was of that height and weight. The boy who is older would be the size he was and the weight he was because he was more mature. To bring such boys down an age group would be to increase the risk of injury. Although the word “normally” was present in Rule 5 (and it allowed for discretion, even to bring a player down an age group) prima facie, under 15 meant under 15 and schools playing one another would not expect over 15’s to be playing. Having regard to the player’s age and size, due to his maturity, he should not have been selected.

The test as regard to causation was stated in Chester v Afshar:- The Claimant had to show that the Defendant’s conduct materially contributed to the Claimant suffering the injury. If a wrongful act or omission resulted in an increased risk of injury to the Claimant, and that risk eventuated, then the Defendant’s conduct had materially contributed to the injury that the Claimant suffered, whether or not other factors also contributed to that injury occurring.

The Judge’s finding on causation had been had been succinct. He had found causation “obvious”. In the Court’s view, what the Judge found, was that the risk against which the Rule was guarding, eventuated, ie the superior size, weight and maturity of the boy who was selected contributed to the Claimant being injured. If the claim had concerned some incident which had nothing to do with size or weight then there would be doubt about the Judge’s conclusion. However, the Judge, doing the best he could with regard to an incident which had occurred 8 or more years before, found that the 15 year old boy did not tackle around the legs, that he got hold of the Claimant’s arms and physically twisted the Claimant to the found. His weight did not fall on the Claimant but instead it was the kind of physical tackle that a larger boy does perform on a smaller boy.

Appeal dismissed.

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