Rugby union is a compulsory sport in many independent schools. Are they putting themselves at risk by compelling under-16s to play the game?
A school’s legal duty of care to its pupils applies to sport as to every other aspect of school life. Sport must be taught and games supervised with a degree of “reasonable care”.
A problem arises when a school’s legal duty comes up against sporting activities that carry a higher than normal risk of injury. In many independent schools, rugby union is a non-negotiable element of the games programme. Are schools putting themselves at risk, in legal terms, by compelling under-16s to play the game, given the increasingly publicised injury risks?
Doctors have a long history of raising concerns over some sports in which the risk of serious or frequent injury is claimed to be particularly high. In recent times, Dr Allyson Pollock, professor of public health research and policy at Queen Mary, University of London, has claimed that full-contact rugby (with scrums and tackles) has no place in schools, particularly where participation is compulsory. Her research suggests that schools’ rugby carries as much as a 17 per cent risk of injury for players across a season.
Are schools putting themselves at risk legally by compelling under-16s to play rugby?
The legal picture is clear where a school has been negligent in provision of games. However, what extra duties does the law say that “higher risk” sports place on schools to protect students? Here are some examples:-
Personal accident insurance In Van Oppen v. clerk to the Bedford Charity Trustees in 1990, the student injured in a school rugby match could not prove negligence in the way a game was managed. However, he argued that it ought to have provided personal accident insurance to compensate him accidental injury. The court decided that no such duty to insure existed, but that it might be advisable to inform parents about what insurance was in place. All schools should carry public liability insurance, providing cover for their legal liability for negligence but few, if any, would actively insure pupils against accidents.
If schools do choose to provide parents with this information, it must be done very carefully with all the staff involved properly trained. It is easy to imagine how liability might arise as a result of a parent being told their child was insured, when cover was not in place for accidental injury.
Refereeing and safety rules Smoldon v Whitworth in 1997 is one of the first cases of a referee being blamed for allowing a player to be injured. He had failed to properly enforce the rule of the scrum, leading to repeated collapses and a very serious injury for a player. A clear duty exists to ensure that sports are played in accordance with the latest rules and guidance of their governing body. In rugby union in particular, rule changes are common and schools must ensure they keep up to date.
Within the maintained sector an onus remains on the school to provide options within any games programme. There is no clear guidance to suggest that it is unlawful to make rugby and other sports compulsory in independent schools, providing that the school has parents’ consent.
It would be prudent for consent to mean a written contractual agreement as part of the school’s overall contract with the parent. However, even if this is in place, consent of this type can be (and often is) revoked by the parent. Many schools that are unable or unwilling to offer alternative games deal with this issue by making it clear to parents that their sports programmes are non-negotiable. A parent who withdraws their consent for a child to participate withdraws their child from the school. It would be very unwise to compel children to play sports their parents had expressly withdrawn their consent for, even if injury did not occur.
Given the public interest in the area, it is clear that further developments in the law are likely. Meanwhile the question for now is not whether compelling students to play particular sports is legal, but should a school ever make such inherently risky games compulsory?
Ian Campbell is a partner at Hill Dickinson