MM v Newlands School & Anor

An age-group sporting guideline qualified by “normally” is not an absolute rule of law, and its breach does not automatically establish negligence. It may nevertheless inform the content of a selector’s duty of care. A selector considering an over-age player must apply the guidance, consider the player’s age, identify any sound reason for departure and, if departure is justified, assess the risks, including undue physical threat. Selecting a well-over-age, larger and more mature player may be negligent even though a player of the same size within the proper age group could safely play. Causation is established where the breach materially increases the risk of injury and the protected risk eventuates. The claimant need not exclude the possibility that similar injury could have occurred without the breach.

A 14-year-old schoolboy fractured his elbow during a lawful tackle in an under-15 rugby match. The tackler had been selected for the opposing school’s team but was well over the relevant age. His size was not, by itself, considered objectionable if he had been within the correct age group.

The Brighton County Court found that the selector had negligently failed to apply the ERFSU Junior Rugby Guidelines and that the school was vicariously liable. It also found that the breach caused the injury. The school appealed, arguing that the guideline allowed a discretion to select the player and that the breach had no causative effect because the tackle was lawful and his size was not itself disqualifying.

Waller LJ gave the judgment of the court. Rix and Hooper LJJ agreed. The appeal was dismissed.

1. Guideline and breach of duty. The ERFSU guideline stating that players should not normally play outside their own age group was not absolute. The word “normally” allowed flexibility, and the guideline was not a rule of law whose breach automatically established liability. It nevertheless informed the content of the selector’s duty of care.
2. The selector should have recognised the relevance of the guideline, considered the player’s age, identified whether there was a sound reason to depart from the norm and, if there was, carried out a risk assessment, including consideration of any undue physical threat. The selector had done none of these things. There was no special reason for departure on the facts. The breach was therefore established.
3. The court further held that even if there had been a reason such as an inability to obtain a game elsewhere, the player’s superior size, weight and maturity, together with the fact that he was well over age, meant that he should not have been selected. The fact that a player of similar size could safely play within the correct age group did not justify bringing an older and more mature player down an age group. The guideline protected smaller and less mature players from the increased risk posed by larger and more mature players, whether the tackle was lawful or unlawful.
4. Causation. Applying the increased-risk approach stated in Chester v Afshar [2005] 1 AC 134 at paragraph 95, citing McHugh J in Chappel v Hart, wrongful conduct materially contributes to injury where it increases the risk of injury and that risk eventuates. The trial judge had found that the relevant risk materialised. The tackle involved the larger player grasping and twisting the claimant to the ground, so the player’s maturity, size and weight materially contributed to the injury. The claimant did not have to exclude the possibility that a lighter player might also have caused injury.

The findings of negligence, causation and vicarious liability therefore stood.

1. Court of Appeal (Civil Division): Dismissed Newlands School’s appeal.
2. Brighton County Court: Mr Recorder Charles MacDonald found that the selector had breached the duty of care, that the breach caused the injury and that the school was vicariously liable.