Van Oppen v Clerk to the Bedford Charity Trustees

Introduction

On 4th November 1980 the plaintiff, Simon Van Oppen, then aged 16 ¹/₂ and a pupil at Bedford School, suffered a severe injury to his cervical spine during the course of an inter-house rugby football match. He subsequently sued the defendant, as a representative of the trustees of the Harpur Charitable Trust responsible for the administration and running of Bedford School, for damages. The damages were claimed on two distinct bases:

(1) An allegation that the school was negligent in failing to take reasonable care for his safety on the rugby field, by failing to coach or instruct him in proper tackling techniques ("the rugby claim"); and

(2) An allegation that the school was negligent in

This claim was referred to as "the insurance claim".

The action came on for trial before Boreham, J. and on 22nd July 1988 he gave a reserved judgment dismissing both the rugby and the insurance claims. From this judgment the plaintiff has appealed in respect of the insurance claim alone.

It was agreed at the trial that had the school had in effect in November 1980 a policy of insurance for the benefit of its pupils of the kind which it subsequently effected, the plaintiff would have become entitled to a sum of £55,000 and that this was the amount of the "economic loss" which, together with any interest payable, the plaintiff had suffered and to which he would have been entitled in the event of the insurance claim succeeding.

In order to understand the way in which the plaintiff seeks to establish the insurance claim it is necessary to set out in some detail the history of events before November 1980.

The Facts

During the latter 1970's there was a growing general awareness of the incidence of spinal cord injuries to rugby players. Dr Silver, a consultant physician at the Spinal Injury Centre at Stoke Mandeville, had become particularly interested in injuries of this type and from about 1969 had considered ways of preventing or reducing them and of mitigating their consequences. He considered rugby football, although a game with great virtues and which he had encouraged his sons to play, the most dangerous activity in schools; it was dangerous from the point of view of the number of injuries both serious and comparatively insignificant, and from the point of view of the risk of death or permanent disability. He accepted that such activities as soccer, gymnastics, climbing and others carried their risks of disabling injury, but his experience suggested that rugby football produced the greatest risk of disabling injury, certainly to the cervical spine. By the early 1970's he had become disturbed by the number of schoolboys who had become paralysed on the rugby field. At that time he had no contact with schools, but he spoke and he wrote extensively on the subject.

By the mid 1970's he had the support of, amongst others, Dr Walkden, the Medical Officer to the Rugby Football Union ("RFU"). Dr Walkden pointed to the need for correct techniques in tackling and in particular the correct placing of the head. At about the same time, in South Africa Dr Scher was contributing to the same topic. In his view it was extremely difficult to prevent injuries to the spinal cord caused in tackling, but he thought something could be done about such injuries caused in the scrum.

In September 1978 Dr Scher's appraoch was taken up in The Sunday Times. In December of the same year Dr Williams and a colleague published a review of patients with spinal injuries in the Cardiff Royal Infirmary. Then in January 1979 Dr Silver published a letter pointing out that schoolboys were particularly at risk, though he accepted in cross-examination at the trial that this might not have been so and that of the examples referred to in his letter at least half had sustained serious injury when playing against adults. It was his view, in line with that of Dr Scher, that many such injuries could not be prevented and thus insurance was the only answer.

For some years the RFU had been trying to secure personal accident insurance cover for all rugby players playing for affiliated clubs. Dr Silver and others were now anxious that schoolboys should be included in such a scheme. So far almost all these contributions had been made in medical publications and they would in the main, therefore, not have been available to the general public or even to schools except perhaps through their Medical Officers.

In December 1978 there had occurred at Christ's Hospital School a serious and tragic accident. A member of Christ's first fifteen, playing against the Old Boys, had his neck broken when a scrum collapsed. The Medical Officer of Christ's Hospital School was Dr Trevor Hoskins, who was at the time the Honorary Secretary (and was later to become the President) of the Medical Officers of Schools Association ("MOSA"). This is an association of about 400 doctors representing some 800 schools. In January 1979 at a meeting at St. Thomas' Hospital, MOSA discussed, amongst other things, a paper on sports injuries. The upshot of the discussion was that Dr Hoskins was deputed to find out more about injuries at schools and to report to a special meeting to be held in March. He sought information of all the members of MOSA and of the Headmasters of all rugby-playing schools, of serious injuries—those to the neck and others causing permanent disability—to rugby-playing schoolboys. Among his correspondents was Mr Kendall Carpenter, Headmaster of Wellington School, Senior Vice-President of the RFU and, as an ex-rugby captain of England, a man of stature in the rugby world.

The special meeting of MOSA was held on 22nd March 1979. Among the contributors to the discussion were: Dr Davies, then the Research Registrar in sports medicine at Guy's Hospital, a rugby international, and subsequently Medical Officer to the Welsh RFU. He had come to the conclusion that there was one serious injury every two years and about one third of those were due to foul play; Dr Walkden, Medical Advisor to the English RFU, who spoke on the prevention and first aid of injuries to the neck on the rugby field; and Dr Silver, who presented a paper which was subsequently published.

Dr Silver's desire was to attract attention to injuries which he had found upsetting, particularly in schoolboys. He could produce no figures to show that schoolboys playing against other schoolboys of comparable ability were more at risk than adults playing against other adults. However, it was generally agreed that they were more at risk when playing against adults.

As a result of the conclusions reached and recommendations made at this meeting, a memorandum ("the MOSA memorandum") was prepared in May 1979. It was signed by Dr Silver, Dr Davies and Dr Walkden, as well as by Drs Moffat and Hoskins, respectively the President and Honorary Secretary of MOSA. Its opening paragraphs were in the following terms:

"At a General Meeting of the Association called on 22nd March 1979 the undersigned spoke on the increase in rugby injuries to the cervical spine in schoolboys.

"Our must urgent recommendation is that schools must take out accident insurance for all their rugby players before the beginning of the 1979–80 season, so that schoolboys who become permanently disabled should receive a substantial sum to help supply their life-long needs. It is not generally realised that English schoolboys are seldom insured against sports injuries, whereas all rugby clubs affiliated to the RFU are obliged to carry insurance, and permanent disablement from spinal injuries due to negligence or road accidents usually attracts compensation of over £100,000.

"A study of injuries known to us suggests that discrepancies of age, weight and skill are factors which increase the risk.…"

There then followed a number of recommendations relating to the organisation and supervision of, and instruction for, the playing of rugby at schools. While these recommendations were not directly relevant to the question of personal accident insurance, the fact that the greater part of the MOSA memorandum was concerned with them is relevant to the subsequent reaction of the school and other interested bodies to the memorandum. In particular the first recommendation that "Schoolboys should not be permitted to play for, or against adult teams. This would eliminate the annual match against the Old Boys" produced much unfavourable comment.

Before considering the effect of the MOSA memorandum on the school and the other interested bodies, it is relevant here to record certain findings of fact made by the judge. He said (transcript page 38) that:

"…of...