Mountford v Newlands School
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Rix,Lord Justice Hooper |
| Judgment Date | 24 January 2007 |
| Neutral Citation | [2007] EWCA Civ 21 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2007 |
| Docket Number | Case No: B3/2006/1105 |
[2007] EWCA Civ 21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Brighton County Court
Mr Recorder Charles MacDonald
BN303354
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice-President of the Court of Appeal, Civil Division
Lord Justice Rix and
Lord Justice Hooper
Case No: B3/2006/1105
Mr Tim Kevan (instructed by DHM Stallard) for the Respondent
Mr Jonathan Bellamy (instructed by Badhams Law) for the Appellants
On 19 th February 1997 the claimant (MM) then a 14 year old schoolboy at Shoreham College Sussex, broke his elbow as a result of a tackle during an inter school 7-a-side under-15 rugby match being played against Newlands Manor School. Under-15 by the Junior Rugby Guidelines of the England Rugby Football Schools' Union (ERFSU) required boys to be under 15 as at 1 st September in any year. Although before the judge there were many issues, for the purposes of this appeal, the facts can be stated as follows. The tackle was carried out lawfully but by a boy (RK) who had been selected for the Newlands Manor team although he was well over 15 on the relevant date. RK was considerably bigger than MM but (again not in issue on the appeal) not of a size that, if he had been under 15, ought to have led to him being excluded. The guidelines provided that players should not normally be allowed to play other than in their own junior group. Mr Recorder MacDonald QC held that the master who selected RK was in breach of a duty of care in selecting RK when he was over age, that the breach of duty caused the injury and that Newlands Manor School were vicariously liable. This is an appeal by Newlands School by virtue of permission granted by Gage LJ. There is no cross appeal seeking to challenge other aspects fought out at the trial. The appeal raises two issues which I can put in the following way for simplicity although there are nuances which arise when I come to consider each of the questions:—
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?
As already indicated other issues were resolved at the trial in favour of the appellants and there is no cross appeal. I should just identify those issues as a matter of background to the points that do arise. First MM was suggesting in his evidence that the tackle was itself a dangerous tackle alleging that RK swung him around and indeed alleging that RK was deliberately trying to “take him out of the game”. The judge rejected that evidence preferring the description of the tackle provided by Simon Kibler (SK) who was the master who had selected RK for Newlands Manor School and was also refereeing the match that afternoon. Second it was alleged that RK had been deliberately selected in disregard of the fact he was over age as “Newlands' exocet missile”; the judge found that SK admitted he did not even know of RK's age and that that admission was so much against SK's interests that he believed it and thus any allegation of deliberately playing RK over age failed. Third it was alleged on behalf of MM that RK's size and height were such that even if he had been under 15 he should not have been allowed to play and thus should either not have been selected or should have been withdrawn by SK when acting as referee; the judge's finding in this regard is important. He held:—
“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.”
The joint note of the experts to which he was referring reads as follows:—
“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.”
The critical findings of the judge commenced with a consideration of the ERFSU guidelines for Junior Rugby and in particular the following:—
“Group … Juniors … Age Range … Under 13 on 1 st September; Under 14 on 1 st September; Under 15 on 1 st September; Under 16 on 1 st 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.”
At the trial the two experts Mr Quittenton and Mr Petherick were allowed to express views on the interpretation of the guidelines. Mr Quittenton for MM expressed an absolutist position. Mr Petherick's was more flexible. The judge's consideration of that question by reference to the expert evidence is not criticised and was in the following terms:—
“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”.”
Two points should be noted. First that the view of Mr Petherick, which the judge was accepting, involved a need for flexibility so as to allow for a boy who for educational reasons might be in a school year below his ERFSU age group (as was RK) but who might not otherwise get a game; and second, that the judge was persuaded by Mr Quittenton's absolutist position that “departures from the rule are rare, especially departures involving playing down”.
The judge then considered how “rule 5” should be applied in practice and accepted Mr Petherick's evidence. The judge found as follows:—
“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...
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...times. The facts of this case are similar to a less severe injury claim reported last year: Mountford v Newlands School & Another [2007] EWCA Civ 21 in which school was held liable for the injury sustained in a rugby tackle caused by the mismatched weight of a much older child. Accordin......