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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MM v Newlands School & Anor [2007] EWCA Civ 21 (24 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/21.html Cite as: [2007] EWCA Civ 21 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
Mr Recorder Charles MacDonald
BN303354
Strand, London, WC2A 2LL |
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B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE RIX
and
LORD JUSTICE HOOPER
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MM |
Respondent |
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- and - |
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Newlands School and Anr |
Appellants |
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Mr Jonathan Bellamy (instructed by Badhams Law) for the Appellants
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Crown Copyright ©
Lord Justice Waller :
i) Since there was no absolute rule against playing a boy over age, and since the judge found that it would not have been a breach of duty to select RK taking account of his size and weight if he had been under 15, should he also have found that, although the master did not realise RK was over age, the master could properly have selected RK and that thus there was no breach of duty?ii) In any event even if there was a breach of duty, since a boy of RK's size and weight could have played and performed the lawful tackle and/or since (on the appellant's submission) RK's size or weight on the judge's findings did not contribute to causing MM's injury, was the judge entitled to find that the injury was caused by a breach of duty?
"32. I cannot see that SK was at fault, if at all, in his separate capacity as referee. Regarding his role as schoolmaster and team selector, I take first the C's complaint that in view of the different physiques of RK and C, RK should not have been allowed to play. This disparity has a separate role in the case in connection with the Rule 5 aspect, but viewed as a free standing allegation of fault I consider that it cannot survive the expert evidence. This took due account of the Baalpe publication relied upon by the C; anyway this was a training manual, not a match playing manual. The experts were in clear agreement that the physical disparity as such was not objectionable: see also the Joint Memo para 4 at TB p 144N. In this respect I cannot find that SK was at fault."
"We note from various items of evidence a disparity in the size of [RK]. According to evidence, [RK] was 5 feet 11 inches tall and weighted 13-14 stone. We AGREE that [RK] was larger than the Claimant (based on the evidence of the Claimant's size at the time, i.e. 5 feet 2 inches tall and weight about 7 stones). We AGREE that Rugby Football is a game which has been designed for players of various statures. And we are aware of instances where players of similar disparities have played together in a safe manner at under 15 and under 16 levels."
"Group . . . Juniors . . . Age Range . . . Under 13 on 1st September; Under 14 on 1st September; Under 15 on 1st September; Under 16 on 1st September; as required . . .
General . . . Structure . . .
4. Junior rugby covers the under-13, under-14, under-15, and under-16 age groups . . .
5. Players should not normally be allowed to play other than in their own junior age grouping.
6. No player aged 16 and below should be permitted to play against any team in which there are adult players, i.e. those aged 19 years and over."
"34. The Quittenton position was that Rule 5 was an absolute rule; that the word "normally" was in practice treated as though it were not there; and that since around 1950 or 1955 the rule had never been interpreted as allowing a schoolboy player to move down an age group. This expert considered however that Rule 5 did allow a boy to move up, albeit only by one year. On this basis there had been an absolute rule against RK being played down into an Under 15 age group team.
35. The Petherick position was that Rule 5 (like all the ERFSU Guidelines) was no more than that – a guideline. Therefore none of the rules, by definition, was absolute. That was the more so in the case of Rule 5, since it used the formula "should not normally". This was to be contrasted with other rules which used the formulae "must not" (e.g. Rule 13) or "should not" (e.g. Rule 6). It was clear that a "must not" rule was different from a "should not normally" rule and that the latter was not mandatory. Movement could be up or down (so long, presumably, as Rule 6 was not infringed). This expert explained the need for flexibility, in that for valid educational reasons a boy might be in the school year below his ERFSU age group (as in the case of RK), but for example might be unable to get a game unless he were allowed to "play down". This could be because for example there was no team in his school for his age group; or because all inter school matches for his age group were played on a different day from the matches for the age group corresponding to his school year group. In such a case this expert was of the view that before allowing such a boy to "play down" the selector should carry out a risk assessment.
36. I have no doubt that the Petherick view of the meaning of the rule is the correct one. That accords with its linguistic meaning. Mr Quittenton's view not only runs counter to the wording of Rule 5 but also lacks internal consistency, in that he considered Rule 5 to allow a boy to "play up", so that even on his testimony the rule was not absolute. I do however take his evidence to indicate that departures from the rule are rare, especially perhaps departures involving "playing down"."
"On this basis what SK should have done was as follows: (a) he should have been aware that Rule 5 was material and consciously applied it (b) he should have known and thought about RK's age (c) he should have considered whether, in the case of RK, there was on the face of it any sound reason to disapply the norm so as to allow RK to play down and (d) if so, he should have carried out a risk assessment before permitting that."
"You just don't put an older player against a younger one in a contact sport . . . the older player is more physically able, stronger, bigger. The older will broadly speaking tend to injure the younger, if only by accident"
"40. Therefore SK failed to think about and apply Rule 5 and there was no evidence of any legitimate reason to take RK out of the norm. it follows that he should not have been selected because he was not eligible. Because of SK's general approach, he did not give evidence as to what risk assessment he would have carried out. Mr Petherick said he would have let RK play at least on a trial basis. But I do not see these matters as relevant. Because there was nothing in RK's case to take him out of the norm, he was not eligible to play down and the stage of risk assessment was not reached. The fact that viewed in isolation the physical disparity between RK and other players was not objectionable may have been a reason not to re-apply the norm, but it cannot have been a reason to disapply it in the first place."
"MY DECISION AS TO LIABILITY
47. The C's case based on the alleged tort of RK fails on the facts and in law. I acquit SK of any fault in his capacity as referee. I have to consider whether the omissions of SK in respect of selection were merely bad practice or amount to negligence. On my findings SK exercised no judgment at all in respect of Rule 5. Having regard to the rationale of Rule 5 and to the evidence of the need for risk assessment, I regard the Rule has having existed at least partly to ensure the safety of players such as the C. I have to conclude that the complete failure to apply or justify a departure from the age rule in the case of RK did amount to negligence by SK. In one sense this may be said to be a curious result. This is because the experts agreed that the physique of RK was not in itself an issue. In this and perhaps in other ways the rule may be said to be arbitrary in its effect. But it existed and the C was entitled to its protection.
CAUSATION
48. I see no difficulty here. It is obvious that the presence of RK on the field materially increased the risk to the C (among others), by virtue of the far superior height and weight of RK, that a tackle (lawful or otherwise) would lead to injury. Rule 5 was intended to protect players such as the C from that risk and that is exactly the risk which eventuated. I do not think that the C has to exclude the possibility that he could have been similarly injured by a lighter tackler. That seems to me to be tantamount to saying that a participant in a risk sport can never prove that the negligence of an official or organiser caused him damage."
"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers, whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring."
"The only other version of the tackle was given by SK in his oral evidence. That too must be treated with circumspection in that these events all happened very fast a long time ago and SK did not, in either of his two statements (dated 30/03/98 and 18/05/05), give a detailed description of the tackle. The particulars of defence (amended and unamended) are relatively inexplicit on this aspect and in any event SK was not the signatory. His oral evidence in cross examination was that the C had just passed the ball but his statement (evidence in chief) said that the C was carrying the ball when tackled. In his oral evidence SK told me that the direction of play at the critical moments was not Northwards but Southwards. He bore this out with geographical details of the location. It is common ground that play continued for a short time after the tackle until it was realised that the C had been injured. If the direction of play had been to the North there would have been a try scored by SG but instead, according to SK, play proceeded to the half way line. I accept his evidence as to the direction of play. SK said that RK came towards the C from the South West and that the C passed the ball to his left (to the East) as the tackle came in. The angle of the tackle was 45 degrees. RK grabbed the C's right arm shortly followed by his left arm (or the other way round) and the C was twisted bodily to the C's left. RK pulled the C in with a twisting but not a swinging motion and twisted him to the ground. RK contacted the C's body in the midriff area or at waist height. SK was about 5 metres away when this happened."
"The match took place at the Salts Recreation Ground, Seaford, Sussex. Each side fielded a team of seven boys (with further players in reserve). MG had selected the Shoreham team and SK had selected the Newlands team. SK was referee, with an Australian gap year student from Newlands acting as one touch judge and MG acting as the other. Within a few minutes of the start of the first lot of play RK tacked the C. The C came to the ground with his left arm behind him in such a way that he fractured his left elbow. As soon as it was appreciated that the C was badly injured the match was abandoned and the C was taken to hospital."
Lord Justice Rix: I agree.
Lord Justice Hooper: I also agree