Malcolm Dowden on the liability of schools for pupils injured in games. The initial blaze of press coverage may have dulled, but schools are still, rightly, concerned about the legal implications of the recent High Court decision in which the referee of a colts rugby match was found liable for neck injuries suffered by a 17-year-old player.
Leave to appeal has been given. However, until such time as the appeal is heard governors, heads and teachers will inevitably be worried at the possibility of being found liable for injuries arising from sports lessons or fixtures. If the decision is upheld on appeal then it will be necessary for schools - and teachers - to think carefully about the risks they run from such activities.
The match, between Sutton Coldfield and Burton upon Trent, was marred by an unusually large number of collapsed scrummages. One late in the second half left the Sutton Coldfield hooker with a broken neck. The injured player, Ben Smoldon, brought an action for negligence against an opposing player, and against the referee, Michael Nolan.
The claim against the player was dismissed, but the judge, Mr Justice Curtis, found that it would be "fair and reasonable" to impose a duty of care on the referee. He found that Mr Nolan had "in important respects relating to the scrums failed to exercise reasonable care and skill in the prevention of collapses by sufficient instruction to the front rows". In particular, he had failed to apply modified Rugby Football Union rules relating to colts level rugby which emphasise the vital importance of reducing the impact of scrum engagement, and therefore the danger of collapse. The claim succeeded because it was possible to prove fault on the part of the referee. Had the injury occurred within the rules and in the normal course of the game, it is probable that the claim would have been dismissed.
Reactions to this decision include predictions of higher insurance policies for referees, clubs and schools. It also raises the possibility that schools (particularly self-managing schools) faced with higher premiums will be reluctant to expose themselves to the risk of liability which can arise from sporting activities.
It is unlikely that many individual teachers will be held personally liable. The principle of vicarious liability will, generally, mean that any acts of negligence on the part of an employee will be attributed to the employer. Consequently, if a teacher's negligence leads to personal injury, action will normally be taken against the school (if self-managing) or against the local education authority as the teacher's employer.
However, circumstances might arise in which an individual is held personally liable if he or she is found to have been acting outside the scope of his or her employment (described in law as having been on "a frolic of his or her own"). To take a few examples: * A teacher qualified to referee a school rugby match is absent. Rather than cancelling the match a colleague who is not qualified takes over. An injury occurs which is attributable to the stand-in referee's lack of understanding of the rules. The school (or local education authority) could argue that the stand-in was acting outside the course of employment.
* A qualified referee is in charge. During the match torrential rain begins, making the playing surface unsafe. Despite recommendations from the linesman the referee decides to play on. An injury occurs because of the underfoot conditions. The school (or LEA) could argue that the referee was grossly negligent in allowing play to continue and was therefore acting outside the scope of employment.
* A candidate, anxious to impress at interview, represents himself as having qualifications necessary to lead extra-curricular activities (such as outward-bound courses). He does not have the relevant qualifications and an injury occurs during the trip. Once again, the school (or LEA) would probably argue that this was a frolic.
Individual teachers should also pay attention to the terms of their contracts of employment - in particular any disciplinary procedures which may be brought by the employer. Situations in which an employee is found to be personally liable for negligence are likely to be limited to fairly extreme cases such as those outlined above. However, while a teacher may escape direct liability by being found to have acted within the scope of employment, the consequences of being disciplined (and perhaps even dismissed) can be at least as serious.
If schools are to continue to run sporting and other outdoor activities (and it is hoped that they will) it is essential that careful attention is paid to the organisation and control of those activities. Staff who are not qualified to lead such activities should not allow themselves to be coerced into doing so (for example by way of cover or on a supply basis).
Those who are involved must ensure that they are fully aware of the rules and of any safety precautions which should be taken. Schools should generally have legal advisors; unions certainly will.
For all concerned, whether the issue is injuries sustained or legal consequences suffered, the stakes are too high to ignore the risks.
Malcolm Dowden is a solicitor with Shoosmiths Harrison, Reading