PI Brief Update

The Dangers of Organised Sport - Tim Kevan, Editorial

31/10/11. The Court of Appeal has made some useful comments as to the standard of care expected of a rugby club organizing a training session which may well have wider application to other sports and events.

Most people would not associate the game of rugby with personal injury claims. However, it has certainly arisen over the years, notably in two cases involving referees (Smoldon v Whitworth and Nolan [1997] PIQR P133 and Vowles v Evans & Welsh Rugby Union [2003] 1 WLR 1607) and one case involving the playing of a player in a game for which he was too old (Mountford v Newlands School [2007] ELR 256).

A different type of personal injury case came before the Court of Appeal on 4 October 2011 in the case of Sutton v Systen Rugby Football Club Ltd [2011] EWCA Civ 1182. In that case, a sixteen year old claimant was injured in pre-season training rugby organised by his Club. In going for a touch down try, the claimant dived and at the same time tagged. He fell onto his right knee which was gashed by a plastic object, found by the judge to have been a broken off part of a cricket boundary marker, which had been left behind by members of a cricket club who had used the area a few days earlier. The marker itself had been a white triangle attached to a stake; the triangle had become broken off leaving only a stub in the grass turf.

It was agreed that the Club owed a duty of care to those training under the Occupiers Liability Act 1957. Specifically, to take such care as was reasonable in all the circumstances of the case to see that the claimant (and their other visitors) would be reasonably safe in using the Club's premises. It was also agreed that there should have been a general inspection of the pitch before the training session began and that no such inspection took place. But the Club asserted that such general inspection would only be for obvious obstructions or difficulties (such as broken glass or dog excrement) and could not be such a detailed inspection as to discover a broken off part of a cricket marker especially if it did not obtrude above the surface of the grass, as the stub in this case did not. This raised two issues: the type of inspection required and whether it would have made any difference in any event ie causation.

Pitch inspection

The Rugby Football Union ("the RFU") itself provides risk assessment guidelines and states that such guidelines are for the purposes of identifying any unsafe condition. They also provide a safety check list which includes a recommendation to check the ground for foreign objects "such as glass, concrete, large stones, dog waste". Longmore LJ (giving a judgment with which the other two judges agreed) commented in this respect: “Although these guidelines refer to matches, it seems to me that this duty should also apply to training sessions and the Club did not seriously dispute that.”  

The judge rejected the suggestion that a quick walk over the pitch would be sufficient and decided that all or most of the ground should be covered "at a reasonable walking pace". Longmore LJ commented, “So far, it seems to me that the judge was right.” However, he then parted company with the judge who had added that a "slightly more careful degree of attention" should be paid to the touch down ends. Longmore LJ said: “It seems to me that, whatever the appropriate standard of inspection is, it should extend to the pitch as a whole rather than that there should be different standards depending on what part of the pitch is being inspected. It is true that the particular training session in this case was a touch rugby session but the coaches could easily have decided to follow it (or precede it) with a full match training session when tackles (and a consequent fall) could happen on any part of the pitch. It is, moreover, unnecessarily complicated to require different standards of care for different parts of the pitch.”

However, whilst he didn’t accept the Club’s suggestion that it would have been enough if the pitch were inspected by someone such as (in this case) one of the coaches walking round the perimeter, he did emphasise that “It is important that neither the game's professional organisation nor the law should lay down standards that are too difficult for ordinary coaches and match organisers to meet. Games of rugby are, after all, no more than games and, as such are obviously desirable activities within the meaning of section 1 of the Compensation Act 2006 (neither party suggested that this section in any way altered the common law position).”

He then went on to give a conclusion of this aspect of the case which would be useful to give to rugby clubs throughout the land: “I would therefore conclude that, before a game or training session, a pitch should be walked over at a reasonable walking pace by a coach or match organiser (or someone on their behalf) and that, if that is done, that will satisfy a Club's common law duty of care in relation to such inspection. If, of course, more than one coach or organiser is available, each such person could inspect a pre-agreed part of the pitch.”

Causation

This then raised the issue of causation. In other words, would it have made any difference if a proper inspection had taken place? This is for the claimant to prove (see eg Fairchild v Glenhaven Funeral Service [2003] 1 AC 32 at paragraph 8 per Lord Bingham). In doing so, the court looked at the claimant’s own evidence who in his witness statement said he had not observed the marker (namely, what was left of it) as it was below the level of the grass. He also stated to his medical adviser that the stub would not have been immediately visible on a casual inspection though this later statement was of limited value as Longmore LJ had already stated that the inspection should not have been casual but instead conducted at a reasonable walking pace. The judge also looked at the evidence of a Mr Tressler who was the only witness who actually saw the stub at the time of, although after, the accident. He said the stub was sticking out of the soil below the level of the grass. In addition, some of the witnesses recorded the grass as being lush and the claimant’s team-mate, Ashley Rideout, who attended to Mr Sutton immediately after the accident, did not observe the stub in the grass. In the light of all of this, Longmore LJ concluded that “even a reasonable "walk over the pitch" inspection would be unlikely to have revealed the stub or, at least, that the claimant has not been able to prove that such an inspection would, on the balance of probabilities, have revealed the stub's existence.”

For these reasons, the court therefore allowed the appeal. It is telling that whilst Longmore LJ expressed sympathy for the claimant, he also went on to conclude that the court “has to look at the case from a wider perspective than just [the claimant’s] own injury and must not be too astute to impose duties of care which would make rugby playing as a whole more subject to interference from the courts than it should be.”

Conclusion

This case will hopefully provide useful guidance not only to rugby clubs but to sports clubs up and down the country who I would imagine are often confused as to what are their legal responsibilities and to what standards they are being held. It would certainly seem useful for all governing bodies to disseminate to their members the conclusions of this case along with guidance on the wider legal duties they owe.

Tim Kevan, Editorial

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