Schools have a legal duty of care to their pupils. This applies to the provision of sport, as it does with every other aspect of school life. Sport must be taught and supervised with a degree of ‘reasonable care’.
A problem arises when a school’s legal duty comes up against high-risk sporting activities. The medical profession has raised concerns over sports such as rugby union, where risk of serious injury is high. Yet in many independent schools, rugby union is a non-negotiable element of the games programme.
In all sports, there will be the question of how great a risk and injury a student is willing to face. This links into the question of consent, particularly in compulsory school games.
Are schools at risk, in legal terms, by compelling under-16s to play the game? And, even if older students understand the risks, is it arguable that where they are told to play, their voluntary acceptance of those risks is defeated?
Where a student is injured because the school has been negligent in the provision of games, the legal picture is clear. However, what additional duties does the law say that ‘higher risk’ sports place on schools to protect students?
Personal accident insurance
In the Van Oppen case, the student injured in a school rugby match could not prove negligence in the way a game was managed. He argued that he should have been covered by personal accident insurance. The court decided that no duty to provide such insurance existed, nor did schools have to advise parents what cover they should obtain.
All schools should carry public liability insurance to provide cover for their legal liability for negligence. Few actively insure pupils against other accidents. However, liability may arise as a result of a parent being told their children were fully insured, if cover was not in place for a purely accidental injury.
Refereeing and safety rules
The Smoldon case is one of the first in which a referee was blamed for allowing a player to be injured. He failed to properly enforce the rule of the scrum, leading to various injuries. The referee argued that the players had consented to taking all the risks of injury in the game. The court held, however, that where a game is played outside what is reasonably within its rules and customs, the players cannot be said to have voluntarily accepted every risk. This case also establishes that a duty is on referees, teachers and their schools to ensure that sports are played in accordance with the latest rules and guidance of their governing bodies.
An onus remains on schools to provide options within the games programme. Currently, there is no clear ruling that it would be unlawful to make risky sports compulsory for students in independent schools, where the parents have given consent to participation.
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 sufficiently informed consent, the parent may be able to withdraw it. Some schools that do not offer alternative activities deal with this by making it clear to parents that their sports programmes are non-negotiable. A parent who withdraws consent for a child to participate in certain sports may be forced to withdraw the child from the school.
It would be unwise for a school 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, further developments in the law are likely. The question for now though is not whether compelling students to play particular sports is legal, but should a school even make inherently risky games compulsory? And if so should a formal consent procedure be instituted to allow for students and parents alike to give informed consent?
Iain Campbell is a partner with Hill Dickinson