| SPOTLIGHT |
A recent Northern Ireland case provided guidance on, and a useful review of the case law in England and Wales relating to, the duty of care owed by a school to its pupils when participating in sport, write Bruce Ralston and Richard Rowe.
In Murray v McCullough on Behalf of the Trustees and Governors of Rainey Endowed School (2016) the claimant, who was 15 at the time of the accident, suffered serious dental injuries when she was struck by a hockey stick whilst participating in a school hockey match. She had played hockey since the age of 11 and had considerable ability having played for the Ulster Under 16 'B' team. The medical evidence was that if she had worn a mouth guard the damage to her teeth would have been prevented.
The claimant alleged that the school should have made the wearing of mouth guards mandatory during hockey matches and that she and her parents were not sufficiently warned about the risks of not wearing a mouth guard so that her decision not to wear one was not informed.
The defendant accepted that it did not require the mandatory use of mouth guards during hockey matches, but relied upon guidance published by hockey's international and national governing bodies, the practice in other schools and a government publication on safe practice in school sport. It argued that it had discharged its duty of care by recommending to the claimant and her parents that she use a mouth guard. Each year they were sent a School Uniform Code which included an equipment list for hockey and recommended that girls wear a mouth guard during hockey activities as recommended by the Hockey Federation. Her mother accepted she had read this on each occasion it was provided.
The hockey teacher gave evidence that she regularly encouraged the wearing of mouth guards and, whilst the claimant denied she had received such warnings, this evidence was accepted by the Court. In addition, during her own evidence, the claimant accepted that she had worn mouth guards in other matches and failed to put forward a good reason why she chose not to do so on this occasion.
On behalf of the claimant it was argued that the duty of a school teacher is "to take such care of his pupils as would a reasonably careful parent of the children of the family". The Judge rejected this submission and instead adopted the wider approach that the duty should be "to take reasonable care in all the circumstances". The yardstick for negligence is reasonable care, not some notional standard as to what a reasonably careful parent would or would not do in relation to their own children.
The Judge confirmed that the circumstances to be taken into account will depend on the facts of each case, but said that highly significant circumstances will be the age and maturity of the child taking into account the child's ability to accurately weigh up the long term impact of serious personal injury against, in this case, the temporary and short term inconvenience of wearing a mouth guard. On this point, evidence was given by a school teacher that an 8-year-old child would not appreciate such risks and in those circumstances reasonable care on the part of the school required the wearing of a mouth guard to be imposed as a mandatory requirement. The Judge also referred to other circumstances that should be taken into account such as the tendency for children to enthusiastically try their best, to disregard risks, to ignore precautions devised for their own safety, to forget safety advice, to be impulsive and to succumb to peer pressures. However, these had to be balanced against the need to foster the personal autonomy of the child and their understanding of their own growing responsibility for their own decisions.
In the circumstances, the Judge found that the school had sufficiently warned the claimant of the risks of not wearing a mouth guard and, in doing so, had discharged its duty of care. She was aware of the risks, but chose not to wear the mouth guard because of the minimal inconvenience of doing so. The duty of care owed by schools to pupils remains high, but this decision reminds us that each case depends on its own facts and that there does come a time when pupils must start to take some personal responsibility for their own safety.
Bruce Ralston is a partner and Richard Rowe is an associate at DAC Beachcroft. Bruce can be reached on 0121 698 5215 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Richard can be contacted on 0121 698 5356 or This email address is being protected from spambots. You need JavaScript enabled to view it..
