NI: School not negligent for failing to make hockey mouth guards mandatory
, as did the National Governing Body for Ireland.
In addition to those international and national publications the defendant relied on the 2008 7th Edition of a publication entitled “Safe Practice in Physical Education and School Sport” published by the Association for Physical Education, which stated that “Shin pads and mouth guards are highly recommended for match play and competitive practices and mandatory at junior representative level” and that “Staff should ensure that pupils and parents are kept well informed about the wearing of mouth guards. A policy strongly recommending the use of mouth guards should be adopted.”
There was a dispute as to the correct construction of what was contained in the Safe Practice Publication, with the expert witness for the plaintiff arguing that the words “highly recommended” were in fact the equivalent of mandatory.
However, this was rejected as not constituting the ordinary use of English language.
The judge observed that “If the wearing of a mouth guard had been compulsory then I find that the plaintiff would have worn one. However I find that the standard procedure at schools in Northern Ireland, based on national and international standards, was for the use of mouth guards to be highly recommended by the school teachers to the pupils for matches of the type in which the plaintiff was participating, rather than being mandatory. The adoption of that standard procedure meant that risks remained and the question is whether the standard generally applied was sufficient to discharge the duty of care in relation to the plaintiff who was 15 at the time of the incident.”
The judge accepted the evidence of the plaintiff’s hockey teacher, who stated that in the first year she would have regularly encouraged the use of mouth guards. That this would have been done prior to each session and also that it would have been done if there was a pause in a session.
The age of the plaintiff at the time of the incident was relevant, as was the fact that she did not put forward any good reason for not using the mouth guard apart from a lack of appreciation of the risks of failing to do so.
The judge considered that the slight degree of inconvenience caused by wearing a mouth guard was in fact the reason why she chose on occasions not to do so, despite knowing the risks involved.
The judge further found that he plaintiff’s parents were sufficiently warned as to the risks of not wearing a mouth guard and that they were not deprived of the opportunity of persuading the plaintiff to wear the mouth guard. Rather the plaintiff’s parents had been provided with such an opportunity and the school had effectively communicated their policies relating to the wearing of mouth guards to the plaintiff’s parents.
As a result, the judge did not considered that the plaintiff has established any grounds of negligence against the defendant.
The judge did not set out an assessment of damages, as it was felt that it would too graphically highlight to the plaintiff the pecuniary compensation which she has failed to secure. Instead, it was held that if there was an appeal, a further judgment on damages would be given.