Physical disparity is acceptable where players are the same age, says an authoritative new case – Kris Lines reports

Physical mismatching in school sport is something we have looked at previously (see this article from October 2006). Mismatching occurs when pupils are teamed with others who are physically inappropriate partners or opponents. Such inappropriate matching can result in injury — for which the school, if it has not followed legal guidelines, could be held negligent.

This article revisits the issue in the light of an important new case.

Concepts

We need to be familiar with two concepts in order to look at the problem of mismatching:

  • the relative age effect (RAE) – the difference in chronological age between pupils of a single age-group, which can cause age mismatching
  • biological maturation — this refers to a pupil’s physical maturity. It can be measured through height, weight, dental or skeletal age, or sexual maturity

Key cases

The two main negligence cases in this area are: 

  • Ward v Donegal Vocational Education Committee (1994)
  • Affutu-Nartoy v Clarke v ILEA (1984)

A recent judgment has now made it necessary to add another case to this list: Mountford v Newlands School and Another (2007).

Like the previous cases listed above, Mountford considers the issue
of mismatching within a physical contact sport (rugby). What distinguishes Mountford, though, is that it proceeded to Court of Appeal level, giving it a far greater authority in law.

This article will consider the effect of Mountford on school sport, and how it relates to the previous two cases.

Mountford: the facts

Mountford v Newlands School concerned an inter-school rugby game between Newlands Manor School and Shoreham College. This was an under-15, seven-a-side game. During the game, M, a 14-year-old schoolboy from Shoreham College was lawfully tackled — and broke his elbow in the process.

M broke his elbow after taking an acceptable risk of the sport. So far so unremarkable. But the boy — ‘R’ — who tackled M, was well over the age of 15. This was a breach of the junior rugby guidelines set out by the English Rugby Football School’s Union (ERFSU).

The decision

The judge at first instance held that the negligence lay not in R’s tackling action, but rather in a failure of S, the master in charge of the Newlands team, to apply, or justify a departure from, the ERFSU age rule in selecting R to play.

The school was, therefore, negligent — vicariously liable for the actions of its employee, the master, S. Although the school appealed against this finding, the Court of Appeal unanimously rejected the appeal, upholding the original verdict.

What about physical disparity?

What is interesting about this case is that although there was an obvious physical disparity between the two players (M was 5ft 2in and weighed seven stone; R was 5ft 11in and weighed between 13 and 14 stone), both the High Court and Court of Appeal held that the disparity would have been acceptable if both players had been the same age.

The Court of Appeal was at pains, however, to clarify that just because a 15-year-old might be of height X and weight Y, this does  not mean that it is permissible to bring someone over the age band who is also of height X and weight Y to play in that game.

This conclusion suggests that if R had been under 15 as well, there would have been no breach of any rules, and therefore no liability.
This conclusion also effectively acquits S (in his capacity as referee) of any negligence in his handling of the game (as opposed to his selection of the team) and for allowing the match to take place despite the physical mismatch between the players.

If the tackle would have been lawful if both players were the same age, then there would have been no negligence in allowing them to play together.

Departure from the rule?

The crux of the case therefore comes down to the interpretation of the ERFSU age rule. Although both courts held that the rule was not an absolute one and that it was possible (in very limited circumstances) to allow players not of that age band to play in a game, such a decision was not to be taken lightly and should be supported by a comprehensive risk assessment.

That was not the case here, and there was no reason why R should not have played in his own age group.

Therefore, because the rule was designed to prevent the risk of a bigger, heavier and more mature boy playing against, and injuring, a younger participant, and this injury occurred, the school was liable.

Implications

The decision in Mountford can be easily reconciled with those in both Ward and Affutu-Nartoy:

  • Ward v Donegal Vocational Education Committee (1994)
    The claimant argued that his injury in a Gaelic football match was due to a mismatching of sizes. The judge held that the game had been properly supervised and that his injury reflected a risk of the sport. If the techniques used were correct, they could be used on any opponent regardless of size. Irish Law Times 103 (Ireland)
  • Affutu-Nartoy v Clarke & ILEA (1984)
    A teacher played in a school rugby game. He was fitter and stronger than the pupils. When one of the pupils was injured following a tackle by the teacher, the judge held the teacher negligent — not for his participation, but for creating a foreseeable risk of injury by tackling the pupils. The Times 9 February 1984 (QBD)

Although tackling is a risk of the game, mismatching creates a foreseeable risk of injury. Of the two authorities, Affutu-Nartoy is more reliable: a duty exists to avoid mismatching.

  • Mountford’s conclusions on allowing a physical disparity between participants of the same age are similar to the conclusions in Ward on the mismatching of sizes, and can be explained by the RAE effect (above).
  • Mountford can also be reconciled with Affutu-Nartoy because both cases were concerned with the risk of foreseeable injuries resulting from a difference in the age of the players. Although in Affutu-Nartoy, the age gap was more pronounced, the principles used to decide the case are identical to the reasons given by the Court of Appeal in Mountford.

Outside the age band

The Court of Appeal in Mountford did leave open the possibility that deliberately fielding a player in a different age band could be justified in certain limited circumstances — these include, for example, where: 

  • there was no team in the school catering for the player’s age group, or 
  • all inter-school matches for an age group were played on a different day from the matches for the age group corresponding to the school year group

In both these situations, the fact that there was no other alternative but to field an out-of-age player might be found to mitigate the increased risks.
But such a situation would be rare, and if it were to take place, a school would need the consent of both teams — and evidence that it had performed a risk assessment in order to identify the dangers associated with this increased maturity.

‘Playing up’

While the judgment in Mountford concerns the case of a pupil who was ‘playing down’ an age group, it is also becoming increasingly common for pupils to ‘play up’ an age group. Is there any guidance on what to do in this situation?

Although it was not necessary for the court in Mountford to come to a decision on this issue, it did hold that in rugby union, no player aged 16
(or under) should be permitted to play against a team in which there are adult players. This is to prevent the foreseeable risk of injury to immature limbs.

Growth spurts

The court also recognised that some pupils grow more quickly than do their peers, often with the result that they are too large to play safely in their own age group. Where this happens, both experts before the court agreed that the rules in rugby allow pupils to move up a year group in order to play against pupils of a similar size and build.

This is undoubtedly correct and corresponds with both the long-term athlete development and biological maturity theories.

In those sports such as rugby, where competitions or events are organised by one-year bandings (U11, U12, U13, U14 etc) ‘playing up’ a grade is therefore not all that uncommon.

What about other sports?

However, while Mountford was specific to rugby, it is interesting to note the positions of two other sports governing bodies on players moving into an older age group: 

  • The English Schools Football Association suggests that because their age groups are all in two-year bandings, there is no need for players to move between groups 
  • England Netball also has both two-year bandings and a strict prohibition against players moving down a category. But it is interesting to note that players can move up an age category in exceptional circumstances — such a move would need to be approved by the central performance directors at England Netball.

A precautionary note

In these examples then, ‘playing up’ a grade or category may be seen as more exceptional. Wherever a pupil is moved up though, whether it is in a one year or two year band, it is strongly recommended that schools obtain the consent of both teams and perform a risk assessment to determine to what extent this situation may create additional risks to the game, in particular to the younger player. Only after this assessment has been performed, will it be safe to move between age groups.

Cut-off dates

While Lord Justice Waller did recognise the arbitrary nature of the age bands, and the fact that a day either side of the band could have serious implications for legal liability, he also held that a cut-off date is a cut-off date, and as such should be respected.

Given this strict approach, it is essential that all teachers be aware of both the cut-off dates for each individual sport, and the birth dates of the players on their teams.

While in many sports, this cut-off date may correspond to September 1 (and therefore the traditional school year), it is essential this not be assumed.

School or club-level?

There may also be different cut-off dates between schools competitions and club-level or national competitions. For example, school gymnastics and trampolining competitions are based around a September 1
cut-off date. For regional (non-school) competitions, that cut-off date changes to January 1 of the competition year. It is therefore possible for pupils to be in two different age groups despite performing ostensibly the same sporting activity.

The BAALPE Guide

It is interesting to note the comments made by Mr Recorder MacDonald QC, (reproduced in par. two of the Court of Appeal judgment) on the use of a BAALPE (British Association of Advisers and Lecturers in Physical Education) manual as evidence.

Although the manual was not named in the Court of Appeal, it is a reasonable assumption that these comments refer to the BAALPE book, Safe Practice in Physical Education, seen by many as the definitive authority on school sport.

Training, not match-playing

In Mountford, the judge suggested that the BAALPE publication relied upon by the claimant was only a training manual, not a match-playing manual. This is an important conclusion, and one that has implications for school PE classes.

Effectively, these comments suggest that while the BAALPE guide is relevant to all areas of school sport, its real value lies in lessons and drills rather than competitive fixtures or events.

If any school is playing competitive fixtures, it is therefore essential that it obtain and follow the specific rules issued by the appropriate governing body, in addition to any BAALPE or AfPE guidance.

Ignorance is no defence

The most important principle to come from Mountford is that it is no defence for a school to field an out-of-age player, however unwittingly, without first considering the additional risks of participation that such a decision might involve.

While it might be highly desirable in some instances for a school to wish to field a player in a different age group (whether older or younger), any such decision must be also accompanied by both an appropriate risk assessment, and the full consent of both teams. Ignorance of ages or dates does not constitute a valid defence.

Kris Lines is a gymnastics and trampolining coach. He also teaches in the School of Law at Birmingham University, where his area of research is sport negligence law.

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